Thomas Tamm. [Source: Newsweek]Thomas Tamm, a veteran Justice Department prosecutor with a high-level security clearance, is finishing up a yearlong post with the Office of Intelligence Policy and Review (OIPR), a Justice Department unit handling wiretaps of suspected terrorists and spies. As his stint is coming to a close, Tamm learns of the existence of a highly classified National Security Agency (NSA) program that is electronically eavesdropping on American citizens—domestic wiretapping. He later learns that “the program,” as it is referred to by those few who know of it at all, is called “Stellar Wind.” Concealment from FISA Judges - Tamm learns that the NSA program is being hidden from the Foreign Intelligence Surveillance Act (FISA) Court, a panel of federal judges who by law must approve and supervise such surveillance for intelligence purposes. OIPR lawyers ask the FISA Court for permission to implement national-security wiretaps. But, Tamm learns, some wiretaps—signed only by Attorney General John Ashcroft—are going to the chief FISA Court judge and not the other ten judges on the FISA panel. The “AG-only” requests are extraordinarily secretive, and involve information gleaned from what is only referred to as “the program”—Stellar Wind. Only a very few White House and US intelligence officials know the name and the nature of “the program.” Stellar Wind involves domestic wiretaps on telephones and computer e-mail accounts derived from, but not necessarily linked to, information secured from captured al-Qaeda computers and cell phones overseas. With the voluntary cooperation of American telecommunications companies (see 1997-August 2007 and After, February 2001, February 2001, and February 2001 and Beyond), the NSA program also collects vast amounts of personal data about US citizens’ phone and e-mail communications. The program also collects an enormous amount of financial information from the Treasury Department (see February 28, 2006), all collected as part of the NSA’s “data mining” efforts (see Late 1999 and After September 11, 2001). Program Is 'Probably Illegal,' Says DOJ Official - Tamm, suspicious about the unusual requests, asks his supervisors about the program, and is told to drop the subject. “[N]o one wanted to talk about it,” he will recall. Tamm asks one of his supervisors, Lisa Farabee, “Do you know what the program is?” Farabee replies: “Don’t even go there.… I assume what they are doing is illegal.” Tamm is horrified. His first thought, he will later recall, is, “I’m a law enforcement officer and I’m participating in something that is illegal?” Tamm soon finds out from deputy OIPR counsel Mark Bradley that the chief FISA judge, Colleen Kollar-Kotelly, is raising unwanted questions about the warrant requests (see 2004 and 2005), and “the AG-only cases are being shut down.” Bradley adds, “This may be [a time] the attorney general gets indicted.” Request for Guidance Turned Down - For weeks, Tamm agonizes over what to do. He seeks guidance from a former colleague, Sandra Wilkinson, who now works on the Senate Judiciary Committee. The two have coffee in the Senate cafeteria, and Tamm asks Wilkinson to ask if anyone on the committee knows anything about “the program.” Weeks go by without a response, and Tamm sends Wilkinson an e-mail from his OIPR computer—an e-mail that will later alert the FBI to Tamm’s interest in Stellar Wind. During a second conversation, Wilkinson refuses to give Tamm any information. “Well, you know, then,” he replies, “I think my only option is to go to the press.” Contacting the New York Times - Tamm finally decides to contact the New York Times’s Eric Lichtblau, who has written several stories on the Justice Department that impressed Tamm. By this point he has transferred out of OIPR and back into a Justice Department office that would allow him to return to the courtroom. Tamm calls Lichtblau from a pay phone near the US District Courthouse in Washington. “My whole body was shaking,” he will recall. He identifies himself only as “Mark” (his middle name), and arranges to meet Lichtblau at a bookstore near the Justice Department. (In his 2008 book Bush’s Law: The Remaking of American Justice, Lichtblau describes Tamm as “a walk-in” source who was “agitated about something going on in the intelligence community.” Lichtblau will describe Tamm as wary and “maddeningly vague,” but as they continue to meet—usually in bookstores and coffee shops in the Capitol District—Tamm’s “credibility and his bona fides became clear and his angst appears sincere. Eighteen months later, after finally overriding a request and warning from President Bush not to print the story (see December 6, 2005), the Times reports on the existence of the NSA program (see December 15, 2005). [Ars Technica, 12/16/2008; Newsweek, 12/22/2008]

US Attorney Paul Charlton of Arizona (see November 14, 2001) begins conferring with Justice Department officials over his idea to have federal law enforcement agents in his district tape-record interrogations of suspects. Charlton came up through the Arizona state criminal justice system, where tape-recording interrogations is routine, and he believes the practice helps prosecutors win cases. He believes the federal policy against tape-recording interrogations is causing his office to lose cases, and considers that policy antiquated and unresponsive to both crime victims and defendants. He discusses the issue with Deputy Attorney General James Comey during a closed session at a conference in San Diego. Days later, Comey’s chief of staff Chuck Rosenberg tells Charlton that the FBI opposes changing the policy. Charlton later says that that opposition is echoed by Johnny Sutton, who chairs the Attorney General’s Advisory Committee. Charlton continues to push the issue, and in May 2005 Comey establishes a working group, which includes Charlton, to formally consider the issue (see April 28, 2005). Charlton will recall that once Comey leaves the Justice Department and is succeeded by Paul McNulty, the issue no longer moves forward. In December 2005, the working group engages in an email discussion with McNulty’s chief of staff Michael Elston on the merits of the policy, but McNulty remains unconvinced. By the end of 2005, the working group has not reached a consensus. In February 2006, Charlton implements the policy in his district. He believes, he later says, that the fact that his office has federal jurisdiction over 21 Native American reservations in his district makes his situation unique. Tape-recording interrogations will help with the violent crime cases that take place on the reservations, but will not impact other districts because they do not have similar jurisdictions. He will also say that FBI agents have the option not to tape-record interrogations. He informs his office and all special agents in charge of federal agencies in his district of his decision. He does not discuss or seek the approval of senior Justice Department officials before implementing the policy. Charlton will say that most of the law enforcement agencies in Arizona are comfortable with the new policy, but the FBI and DEA complain to McNulty over the policy. McNulty will later recall speaking with FBI Director Robert Mueller, who complains that Charlton’s policy could impact criminal prosecutions in other districts that do not record interrogations. On March 1, McNulty tells Charlton to rescind the policy. Charlton refuses and tells Acting Principal Deputy Associate Attorney General William Mercer that he is willing to resign over the issue. McNulty asks Mercer to work with Charlton. Mercer persuades Charlton to design a pilot project for taping interrogations rather than offer his resignation, and promises that it will receive a positive review. Mercer also informs Charlton that McNulty is upset because Charlton did not clear the procedure with his office before implementing it. Charlton asks for something in writing from McNulty’s office confirming the pilot project, and receives an email from McNulty’s chief of staff Michael Elston that reads: “[McNulty] is very interested in having you submit a proposal to have a pilot program in your district. Such a proposal would receive expeditious consideration. [McNulty] understands this issue and is interested in energizing the department’s consideration of it. You are the best advocate for the proposed policy, and he hopes you will play a significant role in the department’s review and the interagency review process.” McNulty’s staff recommends that McNulty approve the program in August 2006, but McNulty takes no action on it, apparently ignoring repeated pressure from Charlton through Mercer. McNulty will later say he never supported the program, though apparently no one in his office informed Charlton of that fact. McNulty will also later say that he probably discussed the matter with Kyle Sampson, the chief of staff to Attorney General Alberto Gonzales, when discussions of firing US Attorneys came up. However, McNulty will say that he does not consider Charlton insubordinate, and does not view Charlton’s actions as constituting an offense requiring termination. [US Department of Justice, Office of the Inspector General, 9/29/2008]

The General Accounting Office (GAO) reports on an array of problems with the military’s missile defense system (see March 23, 1983 and January 29, 1991). Its report includes an unclassified list of 50 recommendations for improving the system that originated in a public report produced by the Pentagon in 2000. Instead of acting on the recommendations, the Pentagon declares the list of recommendations “retroactively classified,” thereby forbidding Congressional members from discussing the recommendations in public. House members Henry Waxman (D-CA) and John Tierney (D-MA), who requested the GAO report, send an angry letter to Defense Secretary Rumsfeld calling the decision to classify the recommendations “highly dubious” and “an attempt to stymie public debate through the use of the classification system.” Rumsfeld ignores the protest. [Savage, 2007, pp. 103-104]

In an apparent act of political retaliation, Vice President Dick Cheney blocks the promotion of a Justice Department official who raised concerns about the legality of the Bush/NSA domestic wiretapping program (see Early 2002). Patrick Philbin, a senior Justice Department counsel, provided much of the research used by Deputy Attorney General James Comey in Comey’s own refusal to approve the wiretapping program (see March 9, 2004 and March 10-12, 2004). Former White House counsel Alberto Gonzales had replaced Ashcroft as attorney general when Philbin’s name came up for promotion. After Cheney warns Gonzales that he will oppose Philbin’s promotion, Gonzales decides not to promote Philbin to the position of deputy solicitor general. In May 2007, Comey will testify before Congress, “I understood that someone at the White House communicated to Attorney General Gonzales that the vice president would oppose the appointment if the attorney general pursued the matter. The attorney general chose not to pursue it.…It was my understanding that the vice president’s office blocked that appointment” (see May 15, 2007). Senate Judiciary Committee member Charles Schumer (D-NY) says in 2007 of Cheney’s opposition to Philbin’s promotion, and Cheney’s attempts to pressure Justice Department officials to back the wiretapping program, “…White House hands guided Justice Department business. The vice president’s fingerprints are all over the effort to strong-arm Justice on the NSA program.” [Associated Press, 6/7/2007] Comey will resign in 2005 and give a farewell speech in which he will say that some Justice Department officials paid a price for their commitment to doing what’s right. When asked in his 2007 testimony what he referred to, Comey will answer, “I had in mind one particular senior staffer of mine who had been in the hospital room with me and had been blocked from promotion, I believed as a result of this particular matter.” Comey is speaking of Philbin, who would have likely been promoted to solicitor general in Bush’s second term. Instead, Philbin resigns from the Justice Department and enters private practice. [National Public Radio, 5/15/2007]

Chuck Rosenberg. [Source: Associated Press / Charles Dharapak]Vice President Dick Cheney challenges objections to the White House’s secret, warrantless surveillance program (see Early 2002) by Justice Department officials. Cheney makes his objections during a meeting attended by high-level White House and Justice Department officials, but this does not come to light until a 2007 testimony by Deputy Attorney General James Comey (see May 15, 2007). [Washington Post, 6/7/2007] (Comey will step down from his post in mid-2005.) [Law.com, 4/21/2005] The White House meetings take place one day before White House officials journey to Attorney General John Ashcroft’s hospital room to try to force Ashcroft to give his approval for the NSA-managed surveillance program (see March 10-12, 2004). Ashcroft will refuse to give his approval. Cheney’s key role in leading what the Washington Post calls “a fierce internal battle over the legality of the warrantless surveillance program” is not known until Comey’s 2007 testimony. The White House meeting, held to discuss Justice Department objections to the NSA program, is attended by Cheney, White House counsel and future attorney general Alberto Gonzales, Cheney’s chief counsel David Addington, and others. Comey will testify that at the time, eight Justice Department officials are prepared to resign if the White House doesn’t back down on forcing the department to sign off on the program. Those officials include FBI director Robert Mueller, US attorney Chuck Rosenberg of the northern Virginia district, and Office of Legal Counsel head Jack Goldsmith. [Washington Post, 6/7/2007]

Michael Battle, the director of the Executive Office for US Attorneys, sends a memo to Kyle Sampson, counsel to Attorney General John Ashcroft, informing him that 16 US Attorneys’ offices are below standards—“underperforming”—in implementing Project Safe Neighborhoods (PSN), a Justice Department initiative to reduce gun violence and prosecute offenders who use guns in the commission of crimes. One of the US Attorneys cited is Carol Lam of the Southern District of California (see November 8, 2002). The memo notes that Lam’s office returned “only 17 firearms indictments” in 2003, and that her office’s PSN indictments and defendants “per criminal work years for FY 2003 is the lowest in the nation.” Subsequent Justice Department analyses of PSN performance continue to identify Lam’s district as needing improvement in firearms prosecutions. [US Department of Justice, Office of the Inspector General, 9/29/2008]

Vice President Dick Cheney gives the Congressional leaders known as the “Gang of Eight”—the House speaker and House minority leader, the Senate majority and minority leaders, and the ranking members of the House and Senate intelligence committees—their first briefing on the NSA’s warrantless wiretapping program (see Early 2002). The Democratic leaders at the meeting are House Minority Leader Nancy Pelosi (D-CA), Senate Minority Leader Tom Daschle (D-SD), House Intelligence Committee ranking member Jane Harman (D-CA), and Senate Intelligence Committee ranking member John D. Rockefeller (D-WV). Daschle (D-SD) later recalls the meeting as superficial. Cheney “talked like it was something routine,” Daschle will say. “We really had no idea what it was about.” Unbeknownst to many of the Congressional leaders, White House and Justice Department leaders are locked in a sharp dispute over whether or not the program is legal and should be continued; Cheney is preparing to send White House counsel Alberto Gonzales and chief of staff Andrew Card to Attorney General John Ashcroft’s hospital room to persuade the gravely ill, heavily sedated Ashcroft to overrule acting Attorney General James Comey and reauthorize the program (see March 10-12, 2004). The briefing is designed to give the appearance of Congressional approval for the program. While most Republicans in the briefing give at least tacit approval of the program, some Democrats, as Daschle will recall, expressed “a lot of concerns” over the program’s apparent violation of fundamental Congressional rights. Pelosi later recalls that she “made clear my disagreement with what the White House was asking.” But administration officials such as Gonzales will later say (see July 24, 2007) that the eight Congressional leaders are in “consensus” in supporting the program, a characterization that is patently false (see July 25, 2007). Gonzales will also later testify that today’s briefing does not cover the NSA wiretapping program, later dubbed the “Terrorist Surveillance Program” (TSP), another apparent falsehood contradicted by Democratic senators such as Rockefeller and Russ Feingold, as well as testimony and notes on the hospital room visit made by FBI Director Robert Mueller and a memo from John Negroponte, the director of national intelligence. Many feel that Gonzales is using the moniker “Terrorist Surveillance Program,” not in use until December 2005, to play what reporter Michael Isikoff calls “verbal parsing” and “a semantic game”—since the NSA wiretapping program is not known by this name at the time of the Congressional briefing, Gonzales will imply that the briefing wasn’t about that program. [Newsweek, 8/6/2007; Klein, 2009, pp. 88]Cheney, Gonzales: Democrats on Board with Illegal Program - In Angler: The Cheney Vice Presidency, a 2008 book by Washington Post reporter Barton Gellman, Gonzales will claim there is a “consensus in the room” among Democrats and Republicans alike, and according to Gellman’s reporting on Gonzales, “four Democrats and four Republicans, duly informed that the Justice Department had ruled something unlawful, said the White House should do it anyway.” Cheney will confirm this allegation during a December 2008 appearance on Fox News. [Klein, 2009, pp. 88]Domestic Surveillance Began before 9/11? - Cheney fails to inform the lawmakers that the wiretapping program may have begun well before the 9/11 attacks (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, July 2001, and Early 2002).

Attorney General John Ashcroft is visited by a squad of top White House and Justice Department officials just hours after Ashcroft underwent emergency surgery for severe, acute pancreatis, and is still recuperating in intensive care. The White House officials attempt to persuade the barely lucid Ashcroft to give his formal approval for the secret National Security Agency warrantless wiretapping surveillance program (see Early 2002), which requires the Justice Department to periodically review and approve it. [National Public Radio, 5/15/2007; Washington Post, 5/16/2007; Washington Post, 6/7/2007; Associated Press, 6/7/2007]Comey, Goldsmith Rush to Head Off Aides - Deputy Attorney General James Comey testifies to the incident before the Senate Judiciary Committee over three years later (see May 15, 2007). Comey will recall that he and Ashcroft had decided not to recertify the surveillance program due to their concerns over its legality and its lack of oversight. On March 9, Ashcroft was rushed to the hospital with severe pancreatis. As per Justice Department procedures, Comey became acting attorney general for the duration of Ashcroft’s incapacity. The next night, just hours after Ashcroft underwent emergency surgery for the removal of his gallbladder, Comey receives an urgent phone call from Ashcroft’s aide, David Ayres, who himself has just spoken with Ashcroft’s wife Janet. Ayres tells Comey that White House counsel Alberto Gonzales and White House chief of staff Andrew Card are en route to Ashcroft’s hospital room to pressure Ashcroft to sign off on the program recertification. A furious Comey telephones FBI director Robert Mueller, and the two, accompanied by aides, race separately through the Washington, DC streets with sirens wailing to reach Ashcroft’s hospital room; they beat Gonzales and Card to the room by a matter of minutes. “I was concerned that, given how ill I knew the attorney general was, that there might be an effort to ask him to overrule me when he was in no condition to do that,” Comey will testify, and will add that to him, Ashcroft appears “pretty bad off.” En route, Mueller instructs the security detail protecting Ashcroft not to allow Card or Gonzales to eject Comey from the hospital room. Card and Gonzales enter just minutes later. [Washington Post, 5/16/2007; PBS, 5/16/2007] “And it was only a matter of minutes that the door opened and in walked Mr. Gonzales, carrying an envelope, and Mr. Card,” Comey will testify. “They came over and stood by the bed, greeted the attorney general very briefly, and then Mr. Gonzales began to discuss why they were there—to seek his approval for a matter.” [National Public Radio, 5/15/2007] Gonzales is holding an envelope containing an executive order from Bush. He tells Ashcroft that he needs to sign off on the order, thereby giving the wiretapping program Justice Department authorization to continue unabated. Comey will testify that Ashcroft “lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me. [Ashcroft then adds] ‘But that doesn’t matter, because I’m not the attorney general. There is the attorney general,’” pointing at Comey. Gonzales and Card leave the room without ever acknowledging Comey’s presence. “I was angry,” Comey will recall. “I thought I just witnessed an effort to take advantage of a very sick man, who did not have the powers of the attorney general because they had been transferred to me.” [Washington Post, 5/16/2007; Washington Post, 6/7/2007] “That night was probably the most difficult night of my professional life, so it’s not something I forget,” Comey will testify. [PBS, 5/16/2007] Goldsmith is also in the room; like Comey, Goldsmith receives a phone call alerting him to Gonzales’s and Card’s visit, and like Comey, Goldsmith races through the Washington streets to arrive at Ashcroft’s room minutes before Gonzales and Card arrive. He, too, is astonished at the brazen, callous approach taken by the two White House officials against Ashcroft, who he describes as laying in his darkened hospital room, with a bright light shining on him and tubes and wires protruding from his body. “Ashcroft, who looked like he was near death, sort of puffed up his chest,” Goldsmith later recalls. “All of a sudden, energy and color came into his face, and he said that he didn’t appreciate them coming to visit him under those circumstances, that he had concerns about the matter they were asking about and that, in any event, he wasn’t the attorney general at the moment; Jim Comey was. He actually gave a two-minute speech, and I was sure at the end of it he was going to die. It was the most amazing scene I’ve ever witnessed.” As Gonzales and Card leave the room, Goldsmith will recall, “Mrs. Ashcroft, who obviously couldn’t believe what she saw happening to her sick husband, looked at Gonzales and Card as they walked out of the room and stuck her tongue out at them. She had no idea what we were discussing, but this sweet-looking woman sticking out her tongue was the ultimate expression of disapproval. It captured the feeling in the room perfectly.” [New York Times Magazine, 9/9/2007] After Gonzales and Card leave the room, Comey asks Mueller to instruct the security detail not to let any more visitors into the room, except for family, without Mueller’s approval, apparently in order to keep Gonzales and Card from attempting to return. [US Department of Justice, 8/14/2007]Cheney or Bush Behind Visit? - The hospital visit is sparked by at least two events: a meeting of White House officials a day earlier, where Vice President Dick Cheney attempted to push reluctant Justice Department officials to approve the surveillance program (see March 9, 2004), and Comey’s own refusal to certify the legality of the surveillance, as noted above. [Washington Post, 6/7/2007] Some believe that the timing of the incident shows that Cheney is the one who ordered Gonzales and Card to go to Ashcroft’s hospital room; Comey personally informed Cheney of his decision not to give his approval to the program. Speculation about Cheney’s ordering of the visit cannot be confirmed, [National Journal, 7/7/2007; National Journal, 8/16/2007] though the New York Times states flatly in an op-ed that “Vice President Dick Cheney sent Mr. Gonzales and [Card] to Mr. Ashcroft’s hospital room to get him to approve the wiretapping.” [New York Times, 7/29/2007] Three years later, Goldsmith will tell Congress that he believes Bush himself authorized the visit (see October 2, 2007). Meeting in the White House - Minutes after the incident in Ashcroft’s hospital room, Card orders Comey to appear at a late-night meeting at the White House; Comey refuses to go alone, and pulls Solicitor General Theodore Olson from a dinner party to act as a witness to the meeting. “Mr. Card was very upset and demanded that I come to the White House immediately. After the conduct I had just witnessed, I would not meet with him without a witness present,” Comey will testify. “[Card] replied, ‘What conduct? We were just there to wish him well.’ And I said again, ‘After what I just witnessed, I will not meet with you without a witness. And I intend that witness to be the solicitor general of the United States.’” On March 11, after an al-Qaeda bombing in Madrid kills over 200 people (see 7:37-7:42 a.m., March 11, 2004, Bush recertifies the program without the approval of the Justice Department. Comey responds by drafting a letter of resignation, effective March 12. “I couldn’t stay if the administration was going to engage in conduct that the Department of Justice had said had no legal basis,” he will testify. “I just simply couldn’t stay.” Comey is not the only one threatening to resign; he is joined by Ashcroft, Mueller, Ayres, Goldsmith, Justice Department official Patrick Philbin, and others, who all intend to resign en masse if Bush signs off on the surveillance program without Justice Department support. But Ayres persuades Comey to delay his resignation; in Comey’s words, Ayres “asked me something that meant a great deal to him, and that is that I not resign until Mr. Ashcroft was well enough to resign with me.” Instead of resigning on March 12, Bush meets separately with Comey and Mueller, and promises to make changes in the program (see March 12-Mid-2004). Those changes have never been disclosed, though some changes are later found to be the creation of a secret review court to oversee the surveillance court, and the clarification of what exactly constitutes “probable cause” for surveillance. Comey will testify,…“Director Mueller came to me and said that, ‘The president told me that the Department of Justice should get this where it wants to be—to do what the department thinks is right.’ And I took that mandate and set about to do that, and I accomplished that.” [Newsweek, 1/9/2006; National Public Radio, 5/15/2007; New York Times, 5/15/2007; Washington Post, 5/16/2007; PBS, 5/16/2007; Associated Press, 6/7/2007] Goldsmith recalls his surprise when Congress later approves the program and brings it somewhat under the supervision of the FISA court. “I was sure the government was going to melt down,” Goldsmith says in 2007. “No one anticipated they were going to reverse themselves.” [New York Times Magazine, 9/9/2007]Did Gonzales Break the Law? - It is also possible that Gonzales and Card may have broken the law in discussing classified information in a public venue. “Executive branch rules require sensitive classified information to be discussed in specialized facilities that are designed to guard against the possibility that officials are being targeted for surveillance outside of the workplace,” says law professor Neal Katyal, a national security adviser under Bill Clinton. “The hospital room of a cabinet official is exactly the type of target ripe for surveillance by a foreign power. And the NSA program is particularly sensitive. One government official familiar with the program notes, “Since it’s that program, it may involve cryptographic information,” some of the most highly protected information in the intelligence community. The law governing disclosure of classified information is quite strict, and numerous government and military officials have been investigated for potential violations in the past. “It’s the one you worry about,” says the government official. Katyal says that if Gonzales did indeed break the law, the Justice Department cannot run any investigation into the matter: “The fact that you have a potential case against the Attorney General himself calls for the most scrupulous and independent of investigations.” Many others are dismayed and confused by the contradictions between the absolute secrecy surrounding the program, and Gonzales’s and Card’s willingness to openly discuss it in such an insecure location, and in front of witnesses not cleared to hear details about the program—including Ashcroft’s wife, who is present in the room while the officials seek her husband’s signature. Former NSA general counsel Elizabeth Parker says not enough is known about the meeting to be sure whether or not the law was broken. “Obviously things can be discussed in ways that don’t divulge highly classified information,” she says. “The real issue is what is it about this program that is so classified that can’t allow it to be discussed in a Congressional setting, even a closed Congressional hearing. In order to have confidence in what this program is all about, one needs to understand better what the approach is and how it affects the rights of American citizens.” 'Horrible' Judgment - John Martin, who oversaw Justice’s counterintelligence division for 26 years, calls Gonzales’s and Card’s attempt to override Comey’s authority as acting attorney general as more than just “bad judgment.” Martin calls their judgement “horrible…they both knew or should have known that the Attorney General while he was so incapacitated had delegated his power to his deputy Jim Comey. Comey’s actions were heroic under the circumstances.” [Time, 5/17/2007]Snow Dismisses Concerns - In May 2007, after Comey’s testimony to the Senate hits the media, White House press secretary Tony Snow dismisses any concerns about the inappropriateness of Gonzales’s and Card’s pressuring of Ashcroft in his hospital room, and skips over the fact that Comey, not Ashcroft, had the final authority of the Attorney General at the time. “Because he had an appendectomy, his brain didn’t work?” Snow will say of Ashcroft. “Jim Comey can talk about whatever reservations he may have had. But the fact is that there were strong protections in there, this program has saved lives and it’s vital for national security and furthermore has been reformed in a bipartisan way.” Judiciary Committee member Charles Schumer (D-NY) has a different take on the incident: “What happened in that hospital room crystallized Mr. Gonzales’ view about the rule of law: that he holds it in minimum low regard.” [Associated Press, 6/7/2007] Senate Democrats are preparing to introduce a resolution of no-confidence against Gonzales. [Time, 5/17/2007]

The head of the Justice Department’s Office of Legal Counsel (OLC), Jack Goldsmith, sends a classified memo to White House counsel Alberto Gonzales. The contents of the memo will remain secret, but the American Civil Liberties Union (ACLU) will learn that it clarifies the OLC’s advice on classified foreign intelligence activities. Goldsmith sends another classified memo on the same topic to Deputy Attorney General James Comey the next day, a followup memo to Comey three days later, and a followup to Gonzales the day after that. [American Civil Liberties Union [PDF], 1/28/2009 ]

After senior Justice Department officials object to the possible illegality of the National Security Agency’s secret domestic surveillance program, and refuse to sign off on its continued use, the program is suspended for several months while Justice Department officials conduct a secret audit of the program. Attorney General John Ashcroft will recertify the program at the end of the month (see Late March, 2004). The suspension is prompted by acting Attorney General James Comey’s refusal to approve the program when it comes up for its regular 45-day review, and a subsequent late-night hospital visit by White House officials Andrew Card and Alberto Gonzales to the hospital room of Attorney General John Ashcroft, where they unsuccessfully attempt to pressure Ashcroft, recuperating from surgery, to overrule Comey and approve the program (see March 10-12, 2004). Bush himself has personally reauthorized the program over 30 times since its inception after the 9/11 attacks (see Early 2002), and reauthorizes it himself after Comey and Ashcroft refuse to give it their approval. This reauthorization prompts a threat of mass resignations by Justice Department officials unless the program is brought under increased oversight. Bush will allow the Justice Department to recommend changes to the program, though those changes have never been made public. The Justice Department audits a selection of cases to see how the NSA is running the program, scrutinizing how NSA officials determine that they have probable cause to wiretap US citizens’ phones and e-mail accounts. The results of that audit have not been made public. When the program was first authorized by Bush’s executive order in early 2002, it was so secret that then-Deputy Attorney General Larry Thompson, who was active in most of the government’s most highly classified counterterrorism operations, was not given access to the program. That decision, among other elements of the program, led many Justice Department officials to worry that the program was operating outside of the Constitution and without proper oversight. Comey, Thompson’s successor, was eventually given authorization to take part in the program and to review intelligence data produced by it. Justice Department officials say that Comey takes part in overseeing the reforms that are put into place during the current audit. However, those reforms do not restrict the NSA’s authority to independently choose its eavesdropping targets, and NSA shift supervisors have the authority to decide for themselves whether there is enough evidence against a US citizen to warrant a secret wiretap. No one at the Justice Department or in the White House needs to be consulted before a wiretap is put into place. [New York Times, 12/31/2005]

President Bush meets privately with acting Attorney General James Comey to discuss the Justice Department’s refusal to reauthorize the administration’s warrantless wiretapping program (see Late September, 2001). (Comey will later refuse to discuss the conversation during testimony before Congress.) After the meeting, Bush meets privately with FBI Director Robert Mueller, Comey’s partner in opposing the program (see March 10-12, 2004). After his meeting, Mueller tells Comey, “[W]e have the president’s direction to do what we believed, what the Justice Department believed was necessary to put this matter on a footing where we could certify its legality.” Author and reporter Charlie Savage will later write, “Comey, [Office of Legal Counsel chief Jack] Goldsmith, and their colleagues spent the next several weeks making a series of undisclosed changes to the warrantless surveillance program—during which time the original program continued to operate, even though the president had been told it was illegal.” Outside experts will later speculate that Comey and Goldsmith had constrained the program’s scope by imposing stricter controls on who can be monitored without a warrant. Some will decide that the program now monitors only communications specifically suspected to have a connection to al-Qaeda, not the more general “suspected terrorism” communications. They will also speculate that the authorization for the program now relies on Congress’s Authorization to Use Military Force (AUMF—see September 14-18, 2001), not the president’s inherent authority as commander in chief. But, Savage will write, the program still allows wiretapping without a judge’s approval, and therefore is still illegal. [Savage, 2007, pp. 188]

It was disclosed in 2003 that the NSA had intercepted several calls between hijackers Khalid Almihdhar, Nawaf Alhazmi, and Salem Alhazmi and an al-Qaeda communications hub in Sana’a, Yemen (see Early 2000-Summer 2001 and Summer 2002-Summer 2004). But in 2004, after revelations that the NSA has been wiretapping inside the US, some media begin to re-examine the circumstances of the hijackers’ calls from the US, as the Bush administration uses the example of these calls as a justification for the NSA’s domestic wiretapping program. [New York Times, 12/16/2005; Los Angeles Times, 12/21/2005; US President, 12/26/2005 ] The calls are thought to be a key aspect of the alleged intelligence failures before 9/11. In late 1998, the FBI had started plotting intercepts of al-Qaeda calls to and from the communications hub on a map (see Late 1998-Early 2002). According to author Lawrence Wright, “[h]ad a line been drawn from the [communications hub] in Yemen to Alhazmi and Almihdhar’s San Diego apartment, al-Qaeda’s presence in America would have been glaringly obvious.” [Wright, 2006, pp. 343-344] In 2006, former NSA Director Michael Hayden will tell the Senate that if the NSA’s domestic wiretapping program had been active before 9/11, the NSA would have raised the alarm over the presence of hijackers Khalid Almihdhar and Nawaf Alhazmi in San Diego. [CNN, 5/19/2006] However, reports in the press suggest otherwise. For example, in one newspaper a senior intelligence official will say that it was not technically possible for the NSA, which had a budget of around $3.6 billion in 2000, to trace the calls. “Neither the contents of the calls nor the physics of the intercepts allowed us to determine that one end of the calls was in the United States,” says the official. [Bamford, 2002, pp. 482; US News and World Report, 3/15/2004] But another report flatly contradicts this. “NSA had the technical ability to pick up the actual phone number in the US that the switchboard was calling but didn’t deploy that equipment, fearing they would be accused of domestic spying.” [MSNBC, 7/21/2004] It is unclear why concerns about domestic spying allegations would prevent the NSA from passing the information on to the FBI. Almihdhar and Alhazmi were not US citizens, but foreign nationals who had entered the US illegally claiming to be tourists. In addition, there was a wealth of evidence connecting them to al-Qaeda (see Early 1999, January 5-8, 2000, and Early 2000-Summer 2001). In any event, the NSA did reportedly disseminate dispatches about some of these US calls (see Spring-Summer 2000). Some FBI officials will later profess not to know what went wrong and why they were not notified of the hijackers’ presence in the US by other agencies. A senior counterterrorism official will say: “I don’t know if they got half the conversation or none of it or hung up or whatever. All I can tell you is we didn’t get anything from it—we being the people at the FBI who could have done something about it. So were they sitting on it? I don’t know.” [Los Angeles Times, 12/21/2005] The US intelligence community, through the CIA, also had access to the phone company’s records for the Yemeni communications hub, which would have shown what numbers were being called in the US (see Late 1998-Early 2002).

Jack Goldsmith, the head of the Justice Department’s Office of Legal Counsel, advises White House counsel Alberto Gonzales in a classified memo that several “classes” of people are not given “protected” status if captured as hostiles in Iraq. Those people include: US citizens, citizens of a state not bound by the Geneva Conventions, citizens of a “belligerent State,” and members of al-Qaeda who are not Iraqi citizens or permanent Iraqi residents. The memo will be made public on January 9, 2009. [US Department of Justice, 3/18/2004 ; American Civil Liberties Union [PDF], 1/28/2009 ]

Jack Goldsmith, the head of the Justice Department’s Office of Legal Counsel (OLC), sends a classified memo to a number of general counsels: the State Department’s William Howard Taft IV, the Defense Department’s William Haynes, the White House’s chief counsel for national security John Bellinger, the CIA’s Scott Muller, and the White House’s Alberto Gonzales. The memo is a draft opinion that concludes the US government can withdraw “protected persons” (a classification of the Geneva Conventions) who are illegal aliens from Iraq to other countries to facilitate interrogation—in other words, the US can subject them to rendition. Goldsmith says the US can also rendition so-called “protective persons” who have not been accused of a crime and who are not illegal aliens in Iraq, as long as the custody is for a brief period. [US Department of Justice, 3/19/2004 ; Cross, 2005; American Civil Liberties Union [PDF], 1/28/2009 ] The memo correlates with another Justice Department memo rejecting “protected person” status for some who are detained by US forces in Iraq (see March 18, 2004).

Deputy Attorney General James Comey sends a classified memo to Attorney General John Ashcroft. The contents of the memo are kept secret, but the American Civil Liberties Union (ACLU) will later learn that it is a briefing and summary of the Office of Legal Counsel (OLC)‘s preliminary conclusions regarding the Terrorist Surveillance Program (see March 2002). [American Civil Liberties Union [PDF], 1/28/2009 ]

Attorney General John Ashcroft recertifies the NSA’s warrantless wiretapping program as being within the law, three weeks after he and his deputy, James Comey, refused to certify it. The program had come under question in early 2004, when Jack Goldsmith, the head of the Justice Department’s Office of Legal Counsel, wrote to Ashcroft and Comey expressing his doubts about the program’s legality (see September 9, 2007). For those three weeks, the program operated without Justice Department approval; President Bush personally recertified it himself, though it was suspended and subjected to an internal review (see March 12-Mid-2004). Ashcroft had previously refused to recertify the program while recuperating from surgery, despite pressure from White House officials Alberto Gonzales and Andrew Card (see March 10-12, 2004). Ashcroft, Comey, Goldsmith, and other Justice Department officials had even threatened to resign en masse if Bush recertified the program without their department’s support; Bush promised to revamp the program to address Ashcroft and Comey’s objections to the program, though what those changes are remains unclear. [Boston Globe, 5/16/2007; Associated Press, 6/7/2007]

Speaking to students in China, Vice President Cheney says that former president Dwight Eisenhower first gave the vice president an office “in the executive branch,” and adds, “since then the responsibilities have gradually increased.” However, Cheney has repeatedly said that the vice president is not part of the executive branch (see 2003, June 26, 2007, and June 29, 2007). [Congress Daily, 6/29/2007]

The Supreme Court convenes to hear arguments in Vice President Cheney’s appeal of a judicial order to reveal information about his secret energy task force (see December 15, 2003). Justice Antonin Scalia has recently returned from a duck hunting trip with Cheney; though critics demand he recuse himself to avoid charges of conflict of interest, Scalia refuses. The plaintiffs, conservative watchdog organization Judicial Watch and progressive environmental group Sierra Club, are heavily represented in the courtroom, and friends and supporters jam the courthouse steps. Solicitor General Theodore Olson, arguing for the government, posits that the White House enjoys a “constitutional immunity” that protects the executive branch from all requests for information unless the president himself is under criminal investigation. If the Federal Advisory Committee Act (FACA) forces the president to make public any advice he or other White House officials have received, or even to make that information available to a judge (see August 2, 2002), FACA itself is unconstitutional, Olsen argues. “This is a case about separation of powers,” he says. Neither Congress nor the judiciary can force the president or his officials to disclose information to a judge, not even on a very limited basis to determine whether a lawsuit can proceed—a process called discovery. “We are submitting that the discovery itself violates the Constitution,” Olson asserts. Justice Ruth Bader Ginsburg is taken aback by the sweep of his claim, which, if accepted, would gut the ability of the courts to review any civil lawsuit involving the executive branch. “All discovery?” she asks. “Yes,” Olson replies. Throughout the questioning, most of the justices seem sympathetic to the administration’s general constitutional concerns, but uncomfortable with siding entirely with the White House’s sweeping claims of inherent legal immunity from scrutiny. [Savage, 2007, pp. 166-167] The oral arguments will continue for weeks (see April 27, 2004).

At a speech in Hershey, Pennsylvania, supporting the USA Patriot Act (see October 26, 2001), President Bush tells listeners that all US surveillance efforts are done with warrants from the Foreign Intelligence Surveillance Act (FISA) Court: “For years, law enforcement used so-called roving wire taps to investigate organized crime. You see, what that meant is if you got a wire tap by court order—and, by the way, everything you hear about requires court order, requires there to be permission from a FISA court, for example.… See, with court approval, we have long used roving wire taps to lock up monsters—mobsters. Now [with the Patriot Act in effect] we have a chance to lock up monsters, terrorist monsters.” [White House, 4/19/2004] The next day, Bush makes a similar claim during another pro-Patriot Act speech in Buffalo. He tells listeners: “[T]here are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires—a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution. But a roving wiretap means—it was primarily used for drug lords. A guy, a pretty intelligence drug lord would have a phone, and in old days they could just get a tap on that phone. So guess what he’d do? He’d get him another phone, particularly with the advent of the cell phones. And so he’d start changing cell phones, which made it hard for our DEA types to listen, to run down these guys polluting our streets. And that changed, the law changed on—roving wiretaps were available for chasing down drug lords. They weren’t available for chasing down terrorists, see? And that didn’t make any sense in the post-9/11 era. If we couldn’t use a tool that we’re using against mobsters on terrorists, something needed to happen. The Patriot Act changed that. So with court order, law enforcement officials can now use what’s called roving wiretaps, which will prevent a terrorist from switching cell phones in order to get a message out to one of his buddies.” [White House, 4/20/2004] Former AT&T senior technician Mark Klein (see July 7, 2009 and May 2004), who helped install the equipment used by the National Security Agency (NSA) and his firm to intercept foreign and domestic Internet communications (see January 16, 2004), will later say that Bush’s insistence that the administration gets court orders before wiretapping communications is false. AT&T, on behalf of the NSA, was monitoring “billions of messages a second,” Klein will write, all without court orders. [Klein, 2009, pp. 47-48] Klein will call Bush’s description of the surveillance program “disingenuous,” and continue: “They present it as about phone calls. They’re just watching a few bad people who make phone calls to al-Qaeda and the Middle East, and you notice they don’t talk about the Internet hardly at all. That part of it hasn’t been revealed, because if they did, Americans would realize it’s not just a few people; it’s everybody, because the data they’re handing over is not selected out. When you run fiber optics through a splitter and you send all that data to a secret room, there’s no selecting going on there at all.… They have no way of sifting it out unless they look through it later. Now they can claim, ‘Oh, we are right as rain; we’re only doing the legal thing and selecting out a few people that we’re legally entitled to,’ but that’s only after they get all the data. The analogy I use: If the government claims: ‘Well, when you do your taxes, why don’t you just write me a blank check and we’ll fill in the amount? Don’t worry. We’ll do it legal. We’ll fill in the right amount,’ would you do that? Nobody would trust the government by writing a blank check to them. It’s the same thing with the data we’re giving them.… [T]he Fourth Amendment specifically bans general warrants. It calls for specific warrants in which the things to be seized and the persons to be seized are specifically named. There’s a reason for that. It’s to protect against arbitrary government power. And what they’ve done is to trample over the Fourth Amendment by basically instituting a general warrant on the Internet.” [PBS Frontline, 5/15/2007]

The Supreme Court hears oral arguments for and against the release of records pertaining to Vice President Cheney’s energy task force (the National Energy Policy Development Group—see May 16, 2001). The case is Cheney v. US District Court for the District of Columbia (03-0475) (see December 15, 2003). Two public interest groups, the environmentalist Sierra Club and the conservative government watchdog organization Judicial Watch, have joined to argue for the release of the records, saying that because the task force deliberations included energy industry executives and lobbyists, the task force is subject to the Federal Advisory Committee Act (FACA), which requires disclosure of the work of advisory groups that include non-federal employees. Bush administration lawyers, spearheaded by Solicitor General Theodore Olson, argue that releasing those records would violate the concept of “separation of powers.” The administration also argues that releasing the records, most pertinently the meetings between Cheney, his aides, and officials from energy corporations and lobbying firms, would damage the White House’s ability to receive candid advice. “This case is about the separation of powers and the president’s discretion to receive the opinions of subordinates,” Olson tells the court; Olson has resisted submitting task force documents even to the Court, saying that even that so-called “discovery” process would violate the Constitutional separation of powers. Lawyers for the Sierra Club and Judicial Watch argue that Cheney’s contacts with industry executives and lobbyists were improper while he was developing government policy that benefited their businesses. They are demanding to know whether energy lobbyists helped shape the government’s long-term energy policies. Lower courts agreed with Judicial Watch and the Sierra Club, and Cheney, with the Justice Department, has successfully ramrodded the case into the Supreme Court with unprecedented speed. Justices Question Breadth of Requests - Justice Antonin Scalia, who refused to recuse himself from deliberations after accompanying Cheney on a duck-hunting trip in January, is one of the justices most favoring the government’s case. But even more moderate justices such as Stephen Breyer and Ruth Bader Ginsburg question whether the information request is too broad and inclusive. As for the White House, it argues that neither the courts nor Congress have any right to make any inquiries into the decisions of federal agencies and officials. Sierra Club lawyer David Bookbinder says the White House appears to have violated laws supporting open government: “What the panel said to energy executives was: Help us decide what the energy policy should be. A line has been crossed because the process should have been transparent. The panel was inordinately influenced by the energy industry.” Cheney has said that the executive branch must defend itself against the “continual encroachment by Congress.” The White House has already turned over some 40,000 documents from the task force after a lower court ruling compelled it to do so (see July 17, 2003), but the lawsuit before the Supreme Court says that another 100,000 potentially relevant documents and files remain secret. [MSNBC, 4/26/2004; New York Times, 4/28/2004; CNN, 6/24/2004]Cheney 'Beyond the Reach of the Law?' - In a legal analysis of the case, former Nixon White House counsel John Dean calls the case “extraordinary,” and notes that Cheney “contends that he is, in essence, beyond the reach of the law. It began as a set of rather pedestrian discovery matters in two consolidated civil lawsuits. Now, however, because of Cheney’s stance, it could be a landmark Constitutional decision.” Dean sees the case as an opportunity for Cheney, with the assistance of Olson and Scalia, “to expand executive powers.” [FindLaw, 3/26/2004]Case Sent Back to Lower Court - The Court will vote to send the case back to the District of Columbia Appeals Court for further adjudication (see June 24, 2004). That court will rule in Cheney’s favor (see May 10, 2005).

Deputy Solicitor General Paul Clement appears before the Supreme Court to argue for the administration in Hamdi v. Rumsfeld (see June 28, 2004). Clement argues that the Court has no role in the White House’s decision to hold suspected terrorists designated as “enemy combatants” without trial or charge. During oral arguments, several of the justices ask Clement if the Bush administration considers itself bound by the Convention against Torture (see October 21, 1994). Clement replies, “The United States is signatory to conventions that prohibit torture and that sort of thing, and the United States is going to honor its treaty obligations.” He continues: “I wouldn’t want there to be any misunderstanding about this. It’s also the judgment of those involved in this process that the last thing you want to do is torture somebody or do something along those lines.” That evening, CBS’s 60 Minutes II airs the first photos of tortured prisoners at Abu Ghraib (see April 28, 2004). [Oral Arguments, Hamdi v. Rumsfeld, 4/28/2004 ; Savage, 2007, pp. 188-189]

Senior AT&T technician Mark Klein (see July 7, 2009) accepts a buyout package from his firm and retires. Klein, disheartened by the illegal AT&T/NSA wiretapping operation he has documented (see January 16, 2004), decides to keep the documents he has collected over the years (see Fall 2003 and Late 2003), the “hard proof” of the operation, he will later write, “in case there was some change in the political winds that would enable me to come forward and expose… the crimes which I knew were being committed.” [Klein, 2009, pp. 44]

The Food and Drug Administration (FDA) announces that it will not permit pharmacies to sell the emergency contraception drug “Plan B” without a prescription. The drug is a “morning-after” birth-control drug that prevents fertilization and the implantation of the embryo. The agency explains to the manufacturer of the drug, Barr Pharmaceuticals, that the government is worried about the possibility that teenaged girls might not understand how to correctly use the drug without a doctor’s advice. The FDA’s decision is in direct contradiction of a federal advisory panel’s 23-4 decision to recommend approving the drug for over-the-counter sales, including to teenagers, without a doctor’s approval. The FDA’s staff recommended that the agency follow the panel’s recommendation. In 2007, author and reporter Charlie Savage will write, “Normally, agencies such as the FDA base their decisions on the information provided by their expert advisory panels—but, strangely, not this time.” A spokesman for the presidential campaign of John Kerry (D-MA) says: “By overruling a recommendation by an independent FDA review board, the White House is putting its own political interests ahead of sound medical policies that have broad support. This White House is more interested in appealing to its electoral base than it is in protecting women’s health.” James Trussell, director of the office of population research at Princeton University and a member of the advisory board, says, “The White House has now taken over the FDA.” Numerous women’s groups accuse the FDA’s political appointees of overruling the experts in order to please social conservatives who believe that the “Plan B” drug encourages promiscuity and is a form of abortion. In the following months, a lawsuit will be filed to have the FDA’s decision overturned (see January 21, 2005 and After). [New York Times, 3/7/2004; Savage, 2007, pp. 300-301]

The lobbying organization Citizens United (CU) runs a television advertisement featuring the father of a firefighter killed in the aftermath of the 9/11 attacks. The father, Jimmy Boyle, says in the ad: “On September 11, terrorists murdered nearly 3,000 Americans, including 346 firefighters, one of which was my son, Michael. I lost my son. I spoke to him that day. He went to work that morning, and he had died for a reason: because somebody hates America. And that day, George Bush became a leader, a war president.” CU is spending $100,000 to run the ad for a week in Ohio, Pennsylvania, West Virginia, Wisconsin, and Washington, DC. CU is led by Republican political operative David Bossie (see May 1998). [Washington Post, 5/11/2004; Media Matters, 5/11/2004]

Rene Lerner, a deputy assistant attorney general in the Office of Legal Counsel (OLC), and Justice Department lawyer Adrien Silas send a memo to Assistant Attorney General William Moschella. The memo will remain classified, but the American Civil Liberties Union (ACLU) will learn that it pertains to the so-called “McCain Amendment,” later known as the Detainee Treatment Act (see December 15, 2005). President Bush will sign the bill into law, but will include a signing statement that states the administration will not follow the law because it impinges on the president’s constitutional authority to conduct military operations (see December 30, 2005). It is unclear whether Bush’s signing statement is influenced by the memo. [ProPublica, 4/16/2009]

Attorney General John Ashcroft again invokes the “state secrets” privilege (see March 9, 1953), forbidding former FBI translator Sibel Edmonds from testifying in a case brought by hundreds of families of September 11 victims (see October 18, 2002). [New York Times, 5/20/2004] Four weeks earlier, on April 26, the Justice Department had obtained a temporary court order preventing her from testifying before the court. [Independent, 4/2/2004; Government Executive, 4/30/2004] The families, represented by the law firm Motley-Rice, allege that a number of banks and two members of the Saudi royal family provided financial support to al-Qaeda. [New York Times, 5/20/2004] Ashcroft’s order retroactively classifies information it provided Senators Chuck Grassley and Patrick Leahy (see June 17, 2002) concerning former FBI translator Sibel Edmonds and her allegations. Among the documents to be “reclassified” are the follow-up letters sent by Grassley and Leahy to the FBI which they posted on their website. Their staff members are prohibited from discussing the information, even though it is now public knowledge. The order bars Edmonds from answering even simple questions like, “When and where were you born?” “What languages do you speak?” and “Where did you go to school?” [New York Times, 5/20/2004; Boston Globe, 7/5/2004; Asia Times, 8/6/2004; Vanity Fair, 9/2005] In response to the announcement, Grassley says: “I think it’s ludicrous, because I understand that almost all of this information is in the public domain and has been very widely available. This classification is very serious, because it seems like the FBI would be attempting to put a gag order on Congress.” [New Republic, 6/7/2004]

White House Counsel Alberto R. Gonzales stresses in an interview that President Bush had urged interrogation and detention policy to be legally sound. Gonzales says, “Anytime a discussion came up about interrogations with the president,… the directive was, ‘Make sure it is lawful. Make sure it meets all of our obligations under the Constitution, US federal statutes and applicable treaties.’”
[Washington Post, 6/9/2004]

David Ottaway. [Source: AAAS.org]According to the Oregon branch of the Islamic charitable organization the Al-Haramain Islamic Foundation, Washington Post reporter David Ottaway receives a classified document that is evidence of illegal surveillance by the National Security Agency. The document shows that the NSA illegally intercepted telephone conversations and e-mails between Al Haramain officials in Oregon and Washington, DC. The document, dated May 24, 2004 and marked “Top Secret,” is accidentally provided to Al Haramain by Treasury Department officials that same month; Al Haramain quickly turns the document over to Ottoway, who is researching Islamic groups and individuals labeled as terrorists by the US government and are attempting to prove their innocence. Instead of reporting on the document, Ottaway will return it to the FBI when that organization demands it back in November 2004. In February 2006, Al Haramain will sue the Bush administration for illegally spying on it (see February 28, 2006) as part of its warrantless wiretapping program (see After September 11, 2001 and December 15, 2005). The Treasury Department has been investigating the charitable organization for possible ties to terrorism, and designated the group as a terrorist organization. The FBI will approach the organization and then Ottaway himself, demanding that all copies of the document be returned and threatening them with prosecution if the contents are revealed. Ottaway will consult with Post editors and lawyers, who will conclude, according to Ottaway, “that it was not relevant to what I was working on at the time.” Post executive editor Leonard Downie, Jr., will defend the decision, saying, “At the time we had this document, it was before we had any knowledge of the eavesdropping program. Without that knowledge, the document provided no useful information. At the time, all we knew was that this document was not relevant to David’s reporting.” [Washington Post, 3/3/2006]

The Washington Post reveals the existence of a secret August 2002 memo from the Justice Department. This memo advised the White House that torturing al-Qaeda terrorists in captivity “may be justified,” and that international laws against torture “may be unconstitutional if applied to interrogations” conducted in the US war on terrorism (see August 1, 2002). The legal reasoning was later used in a March 2003 report by Pentagon lawyers assessing interrogation rules governing the military detention center at Guantanamo Bay (see March 6, 2003). Bush officials say that despite the memo, it has abided by the Geneva Conventions and other international treaties proscribing torture (see February 7, 2002). The incidents at Abu Ghraib, where numerous Iraqi prisoners were tortured, maimed, and sometimes murdered, were not policy, officials say. Human rights organizations and civil libertarians are appalled at the memo. “It is by leaps and bounds the worst thing I’ve seen since this whole Abu Ghraib scandal broke,” says Tom Malinowski of Human Rights Watch. “It appears that what they were contemplating was the commission of war crimes and looking for ways to avoid legal accountability. The effect is to throw out years of military doctrine and standards on interrogations.” A senior Pentagon official says that the Judge Advocate Generals (JAGs) were quick to challenge the Justice Department opinion when it was promoted by the Pentagon. “Every flag JAG lodged complaints,” the official says. A senior military attorney says of the memo: “It’s really unprecedented. For almost 30 years we’ve taught the Geneva Convention one way. Once you start telling people it’s okay to break the law, there’s no telling where they might stop.” [Washington Post, 6/8/2004] Attorney General John Ashcroft tells the Senate Judiciary Committee that he will not discuss the contents of the August 2002 memo, nor turn it over to the committee. “I believe it is essential to the operation of the executive branch that the president has the opportunity to get information from the attorney general that is confidential,” he says. [Washington Post, 6/8/2004]

Attorney General John Ashcroft tells a Senate committee, “This administration rejects torture.”
[Guardian, 6/9/2004] When asked whether torture might be justified in certain situations, Ashcroft responds, “I condemn torture. I don’t think it’s productive, let alone justified.”
[Washington Post, 6/8/2004] With regard to President Bush’s involvement, he says: “Let me completely reject the notion that anything that this president has done or the Justice Department has done has directly resulted in the kind of atrocity which were cited. That is false.”
[Guardian, 6/9/2004] Ashcroft adds, “There is no presidential order immunizing torture.”
[Washington Post, 6/8/2004]

The memos written by the Office of Legal Counsel (OLC) and the Pentagon Working Group cause a flow of criticism when they are revealed in May and June 2004. The Washington Post fumes that the news of the “torture memos”
“brings shame on American democracy.”
[Washington Post, 6/9/2004]

During the annual G-8 economic summit, held in Sea Island, Georgia [2004 G8 Summit, 2004] , President Bush rejects the notion that he approved the use of torture. “The authorization I gave,” the president says, “was that all we did should be in accordance with American law and consistent with our international treaty obligations. That’s the message I gave our people.” He adds, “What I authorized was that we stay within the framework of American law.” And to emphasize his point, he says: “Listen, I’ll say it one more time.… The instructions that were given were to comply with the law. That should reassure you. We are a nation of laws. We follow the law. We have laws on our books. You could go look at those laws and that should reassure you.” [US President, 6/21/2004] During the summit, the foreign ministers of the participating countries are suddenly called to Washington to meet with Bush and Secretary of State Colin Powell. As Canadian Foreign Minister Bill Graham will later recall: “Colin suddenly phoned us all up and said, ‘We’re going to the White House this morning.’ Now, this is curious, because normally the heads of government don’t give a damn about foreign ministers. We all popped in a bus and went over and were cordially received by Colin and President Bush. The president sat down to explain that, you know, this terrible news had come out about Abu Ghraib and how disgusting it was. The thrust of his presentation was that this was a terrible aberration; it was un-American conduct. This was not American. [German Foreign Minister] Joschka Fischer was one of the people that said, ‘Mr. President, if the atmosphere at the top is such that it encourages or allows people to believe that they can behave this way, this is going to be a consequence.’ The president’s reaction was: ‘This is un-American. Americans don’t do this. People will realize Americans don’t do this.’ The problem for the United States, and indeed for the free world, is that because of this—Guantanamo, and the ‘torture memos’ from the White House (see November 6-10, 2001 and August 1, 2002), which we were unaware of at that time—people around the world don’t believe that anymore. They say, ‘No, Americans are capable of doing such things and have done them, all the while hypocritically criticizing the human-rights records of others.’” [Vanity Fair, 2/2009]

Jack Goldsmith, once considered a rising star in the Bush administration (see October 6, 2003), resigns under fire from his position as chief of the Justice Department’s Office of Legal Counsel (OLC). In his nine-month tenure, Goldsmith fought against the administration’s warrantless wiretapping program, its advocacy of torture, and its policy of extrajudicial detention and trial for terror suspects. Goldsmith will not discuss his objections to the administration’s policy initiatives until September 2007, when he will give interviews to a variety of media sources in anticipation of the publication of his book, The Terror Presidency. Goldsmith led a small, in-house revolt of administration lawyers against what they considered to be the constitutional excesses of the legal policies advocated by the administration in its war on terrorism. “I was disgusted with the whole process and fed up and exhausted,” he will recall. Goldsmith chooses to remain quiet about his resignation, and as a result, his silence will be widely misinterpreted by media, legal, and administration observers. Some even feel that Goldsmith should be investigated for his supposed role in drafting the torture memos (see January 9, 2002, August 1, 2002, and December 2003-June 2004) that he had actually opposed. “It was a nightmare,” Goldsmith will recall. “I didn’t say anything to defend myself, except that I didn’t do the things I was accused of.” [New York Times Magazine, 9/9/2007] Goldsmith will not leave until the end of July, and will take a position with the Harvard University Law School. Unlike many other Justice Department officials, he will not be offered a federal judgeship, having crossed swords with White House lawyers too many times. [Savage, 2007, pp. 191]

Reacting to one of the “torture memos,” Republican representative Frank Wolf of Virginia writes in a letter to the Justice Department: “I am deeply concerned that this memorandum provides legal justification for the US government to commit cruel, inhumane, and degrading acts, including torture, on prisoners in US custody.”
[MSNBC, 6/23/2004]

Aides to President Bush, including Alberto Gonzales, publicly renounce the internal memo of August 1, 2002 (see August 1, 2002) that outlined a legal opinion by the Justice Department’s Office of Legal Counsel (OLC). They say it created the false impression that the US government was claiming the right to authorize interrogation techniques in violation of international law. Gonzales agrees that some of its conclusions were “controversial” and “subject to misinterpretation.”
[Washington Post, 6/23/2004] The White House announces that all legal advice rendered by the OLC on interrogations will be reviewed and that sections of the August memo will be rewritten. Gonzales says the section in the memo arguing that the president, as Commander-in-Chief, is not bound by anti-torture laws is “unnecessary.” Justice Department officials also say the section will be scrapped. [Washington Post, 6/27/2004] In his introductory statement, however, Gonzales describes the circumstances under which the memo had come about: “We face an enemy that lies in the shadows, an enemy that doesn’t sign treaties, they don’t wear uniforms, an enemy that owes no allegiance to any country, they do not cherish life. An enemy that doesn’t fight, attack, or plan according to accepted laws of war, in particular Geneva Conventions.”
[Washington File, 6/23/2004] Gonzales claims that giving these people a protected status under the Geneva Conventions would be tantamount to rewarding the terrorists’ lawlessness. “[T]o protect terrorists when they ignore the law is to give incentive to continued ignoring that law,” he says.
[Washington File, 6/23/2004] Gonzales says he thinks that Bush never actually saw the August 2002 memo: “I don’t believe the president had access to any legal opinions from the Department of Justice.”
[New York Times, 6/24/2004]

President Bush, responding to questions regarding reports that prisoners have been tortured in Iraq, says: “Let me make very clear the position of my government and our country: We do not condone torture. I have never ordered torture. I will never order torture. The values of this country are such that torture is not a part of our soul and our being.” [Washington Post, 6/23/2004]

Attempting to stem the flow of bad publicity and world-wide criticism surrounding the revelations of torture at Abu Ghraib prison in Baghdad and similar reports from Guantanamo Bay, Attorney General Alberto Gonzales and Pentagon general counsel William J. Haynes, accompanied by Pentagon lawyer Daniel Dell’Orto, give a lengthy press conference to discuss the US’s position on interrogation and torture. Gonzales and Haynes provide reporters with a thick folder of documents, being made public for the first time. Those documents include the so-called “Haynes Memo” (see November 27, 2002), and the list of 18 interrogation techniques approved for use against detainees (see December 2, 2002 and April 16, 2003). Gonzales and Haynes make carefully prepared points: the war against terrorism, and al-Qaeda in particular, is a different kind of war, they say. Terrorism targets civilians and is not limited to battlefield engagements, nor do terrorists observe the restrictions of the Geneva Conventions or any other international rules. The administration has always acted judiciously in its attempt to counter terrorism, even as it moved from a strictly law-enforcement paradigm to one that marshaled “all elements of national power.” Their arguments are as follows: Always Within the Law - First, the Bush administration has always acted within reason, care, and deliberation, and has always followed the law. In February 2002, President Bush had determined that none of the detainees at Guantanamo should be covered under the Geneva Conventions (see February 7, 2002). That presidential order is included in the document packet. According to Gonzales and Haynes, that order merely reflected a clear-eyed reading of the actual provision of the conventions, and does not circumvent the law. Another document is the so-called “torture memo” written by the Justice Department’s Office of Legal Counsel (see August 1, 2002). Although such legal opinions carry great weight, and though the administration used the “torture memo” for months to guide actions by military and CIA interrogators, Gonzales says that the memo has nothing to do with the actions at Guantanamo. The memo was intended to do little more than explore “the limits of the legal landscape.” Gonzales says that the memo included “irrelevant and unnecessary” material, and was never given to Bush or distributed to soldiers in the field. The memo did not, Gonzales asserts, “reflect the policies that the administration ultimately adopted.” Unfortunately for their story, the facts are quite different. According to several people involved in the Geneva decision, it was never about following the letter of the law, but was designed to give legal cover to a prior decision to use harsh, coercive interrogation. Author and law professor Phillippe Sands will write, “it deliberately created a legal black hole into which the detainees were meant to fall.” Sands interviewed former Defense Department official Douglas Feith about the Geneva issue, and Feith proudly acknowledged that the entire point of the legal machinations was to strip away detainees’ rights under Geneva (see Early 2006). Harsh Techniques Suggested from Below - Gonzales and Haynes move to the question of where, exactly, the new interrogation techniques came from. Their answer: the former military commander at Guantanamo, Michael E. Dunlavey. Haynes later describes Dunlavey to the Senate Judiciary Committee as “an aggressive major general.” None of the ideas originated in Washington, and anything signed off or approved by White House or Pentagon officials were merely responses to requests from the field. Those requests were prompted by a recalcitrant detainee at Guantanamo, Mohamed al-Khatani (see August 8, 2002-January 15, 2003), who had proven resistant to normal interrogation techniques. As the anniversary of the 9/11 attacks approached, and fears of a second attack mounted, Dell’Orto says that Guantanamo field commanders decided “that it may be time to inquire as to whether there may be more flexibility in the type of techniques we use on him.” Thusly, a request was processed from Guantanamo through military channels, through Haynes, and ultimately to Defense Secretary Donald Rumsfeld, who approved 15 of the 18 requested techniques to be used against al-Khatani and, later, against other terror suspects (see September 25, 2002 and December 2, 2002). According to Gonzales, Haynes, and Dell’Orto, Haynes and Rumsfeld were just processing a request from military officers. Again, the evidence contradicts their story. The torture memo came as a result of intense pressure from the offices of Rumsfeld and Vice President Cheney. It was never some theoretical document or some exercise in hypothesizing, but, Sands will write, “played a crucial role in giving those at the top the confidence to put pressure on those at the bottom. And the practices employed at Guantanamo led to abuses at Abu Ghraib.” Gonzales and Haynes were, with Cheney chief of staff David Addington and Justice Department lawyers John Yoo and Jay Bybee (the authors of the torture memo), “a torture team of lawyers, freeing the administration from the constraints of all international rules prohibiting abuse,” in Sands’s words. Dunlavey was Rumsfeld’s personal choice to head the interrogations at Guantanamo; he liked the fact that Dunlavey was a “tyrant,” in the words of a former Judge Advocate General official, and had no problem with the decision to ignore the Geneva Conventions. Rumsfeld had Dunlavey ignore the chain of command and report directly to him, though Dunlavey reported most often to Feith. Additionally, the Yoo/Bybee torture memo was in response to the CIA’s desire to aggressively interrogate another terror suspect not held at Guantanamo, Abu Zubaida (see March 28, 2002). Sands will write, “Gonzales would later contend that this policy memo did ‘not reflect the policies the administration ultimately adopted,’ but in fact it gave carte blanche to all the interrogation techniques later recommended by Haynes and approved by Rumsfeld.” He also cites another Justice Department memo, requested by the CIA and never made public, that spells out the specific techniques in detail. No one at Guantanamo ever saw either of the memos. Sands concludes, “The lawyers in Washington were playing a double game. They wanted maximum pressure applied during interrogations, but didn’t want to be seen as the ones applying it—they wanted distance and deniability. They also wanted legal cover for themselves. A key question is whether Haynes and Rumsfeld had knowledge of the content of these memos before they approved the new interrogation techniques for al-Khatani. If they did, then the administration’s official narrative—that the pressure for new techniques, and the legal support for them, originated on the ground at Guantanamo, from the ‘aggressive major general’ and his staff lawyer—becomes difficult to sustain. More crucially, that knowledge is a link in the causal chain that connects the keyboards of Feith and Yoo to the interrogations of Guantanamo.” Legal Justifications Also From Below - The legal justification for the new interrogation techniques also originated at Guantanamo, the three assert, and not by anyone in the White House and certainly not by anyone in the Justice Department. The document stack includes a legal analysis by the staff judge advocate at Guantanamo, Lieutenant Colonel Diane Beaver (see October 11, 2002), which gives legal justifications for all the interrogation techniques. The responsibility lies ultimately with Beaver, the three imply, and not with anyone higher up the chain. Again, the story is severely flawed. Beaver will give extensive interviews to Sands, and paint a very different picture (see Fall 2006). One Naval Criminal Investigative Service (NCIS) psychologist, Mike Gelles (see December 17-18, 2002), will dispute Gonzales’s contention that the techniques trickled up the chain from lower-level officials at Guantanamo such as Beaver. “That’s not accurate,” he will say. “This was not done by a bunch of people down in Gitmo—no way.” That view is supported by a visit to Guantanamo by several top-ranking administration lawyers, in which Guantanamo personnel are given the “green light” to conduct harsh interrogations of detainees (see September 25, 2002). No Connection between Guantanamo, Abu Ghraib - Finally, the decisions regarding interrogations at Guantanamo have never had any impact on the interrogations at Abu Ghraib. Gonzales wants to “set the record straight” on that question. The administration has never authorized nor countenanced torture of any kind. The abuses at Abu Ghraib were unauthorized and had nothing to do with administration policies. Much evidence exists to counter this assertion (see December 17-18, 2002). In August 2003, the head of the Guantanamo facility, Major General Geoffrey Miller, visited Abu Ghraib in Baghdad, accompanied by, among others, Diane Beaver (see August 31, 2003-September 9, 2003). They were shocked at the near-lawlessness of the facility, and Miller recommended to Lieutenant General Ricardo Sanchez, the supreme US commander in Iraq, that many of the same techniques used at Guantanamo be used in Abu Ghraib. Sanchez soon authorized the use of those techniques (see September 14-17, 2003). The serious abuses reported at Abu Ghraib began a month later. Gelles worried, with justification, that the techniques approved for use against al-Khatani would spread to other US detention facilities. Gelles’s “migration theory” was controversial and dangerous, because if found to be accurate, it would tend to implicate those who authorized the Guantanamo interrogation techniques in the abuses at Abu Ghraib and elsewhere. “Torture memo” author John Yoo called the theory “an exercise in hyperbole and partisan smear.” But Gelles’s theory is supported, not only by the Abu Ghraib abuses, but by an August 2006 Pentagon report that will find that techniques from Guantanamo did indeed migrate into Abu Ghraib, and a report from an investigation by former defense secretary James Schlesinger (see August 24, 2004) that will find “augmented techniques for Guantanamo migrated to Afghanistan and Iraq where they were neither limited nor safeguarded.” [White House, 7/22/2004; Vanity Fair, 5/2008]

The Supreme Court rules in the case of Cheney v. US District Court for the District of Columbia (03-0475), in which two organizations, Judicial Watch and the Sierra Club, are attempting to force the White House to reveal information about the secret deliberations of Vice President Cheney’s energy task force (see April 27, 2004). Neither side gets what it asks for in the 7-2 ruling, as the Court sends the case back to the US Court of Appeals for further adjudication, with an order for that court to take a second look at its ruling that Cheney must allow a judge to review the task force documents (see August 2, 2002). Five justices—Stephen Breyer, Anthony Kennedy, Sandra Day O’Connor, Chief Justice William Rehnquist, and John Paul Stevens—vote to send the case back to the appeals court. Two justices, Ruth Bader Ginsburg and David Souter, vote to send the case all the way back to the original trial court, concurring with the majority. The Court’s two most conservative justices, Antonin Scalia and Clarence Thomas, vote to resolve the matter entirely in Cheney’s favor. Judge Anthony Kennedy, writing for the majority, instructs the appeals court—and all other courts who might subsequently hear such a case—to use a legal standard far more aligned with the executive branch’s claim of immunity from disclosure. Courts must afford “presidential confidentiality the greatest protection consistent with the fair administration of justice,” Kennedy writes, to protect the executive branch from being sued. Former Nixon White House counsel John Dean will later write that the Court may have avoided making a firm ruling because it did not want to wrangle with the issue of separation of powers, and the privilege of executive branch secrecy, in an election year. While most media and court observers call the decision a “punt” of little import, at least one, former Justice Department official Shannen Coffin, sees it differently. In a column for the National Review, Coffin celebrates the ruling, writing that due to “the vice president’s resolute assertion that he and the president should have the right to receive in confidence the advice necessary to the performance of their duties,” the White House has won a “major victory” in expanding its power to keep its procedures secret, regardless of the appeals court’s eventual ruling (see May 10, 2005). [National Review, 6/25/2004; FindLaw, 7/2/2004; Savage, 2007, pp. 167-168] The appeals court will agree with Thomas and Scalia, and rule in Cheney’s favor (see May 10, 2005).

David Bossie (see May 1998), the head of the conservative lobbying group Citizens United (CU), accuses liberal filmmaker Michael Moore of improper involvement in the presidential campaign of Senator John Kerry (D-MA). Moore and the production company Lions Gate have released a new documentary, Fahrenheit 9/11, that is highly critical of the Bush administration (see June 25, 2004). Bossie says the film’s commercials, airing on network and cable television, are little more than campaign commercials devised to attack President Bush and assist Kerry. One commercial shows Bush on the golf course, talking about terrorism. In the clip, Bush tells a group of reporters, “We must stop these terrorist killers,” then turns his back, hefts his golf club, and says, “Now watch this drive.” The New York Times writes that “[t]he scene is one of many featured in the film that paint the president as cavalier, cynical, and insincere in the war against terrorism.” Republicans have for the most part ignored the film until recently, when ads for the film began drawing what they consider unwarranted attention. Bossie says: “There’s only a very small percentage of Americans that are going to go and see this movie. A much larger number are going to be bombarded by these political ads run by Michael Moore, potentially all the way through the election.” CU has run ads supportive of Bush (see (May 11, 2004)). Bossie has filed a complaint with the Federal Election Commission (FEC) asking that agency to classify the film’s ads as political, and restrict their broadcast according to campaign finance law (see March 27, 2002 and December 10, 2003). The law says that if found to be political, the ads must not be aired within 30 days of the start of the Republican National Convention on August 30. Legal experts say the FEC is unlikely to rule on the complaint for months, and even if the agency finds the ads to be political, the film could qualify for an exemption from the restrictions for news and commentary. Tom Ortenberg of Lions Gate says, “If we are still running television ads [by July 30], we will make certain that they are in full compliance with any and all regulations.” If they must remove Bush from the ads to remain in compliance, Ortenberg says “we can market this film without him.” Ortenberg denies that the ads have any political agenda. [New York Times, 6/27/2004] After Lions Gate agrees not to show ads for the film after July 30, the FEC will dismiss the complaint (see August 6, 2004).

David Hicks. [Source: Associated Press]In the case of Rasul v. Bush, involving Guantanamo detainees Shafiq Rasul, Mamdouh Habib, David Hicks, and Asif Iqbal, the Supreme Court holds in a 6-3 ruling that the US exercises “complete jurisdiction and control” over Guantanamo Bay, and thus, that the Guantanamo prisoners have the right to challenge their detentions before a judge. Under the habeas corpus statute, Justice John Paul Stevens writes for the majority that “aliens held at the base, no less than American citizens, are entitled to invoke the federal courts’ authority.” [Supreme Court opinion on writ of certiorari. Shafiq Rasul, et al. v. George W. Bush, et al., 6/28/2004] It is unclear whether the court’s ruling is intended to extend to detainees held in other parts of the world, but given the court’s reasoning, it appears that decision applies to detainees both in Guantanamo and elsewhere. [New York Times, 6/29/2004]Conservative Dissent - The three dissenting justices are conservatives William Rehnquist, Antonin Scalia, and Clarence Thomas. Scalia says the decision is “an irresponsible overturning of settled law in a matter of extreme importance to our forces currently in the field.” He acknowledges that the location of Guantanamo has in fact been intended to keep detainees outside of the reach of the judiciary. “Today, the court springs a trap on the executive, subjecting Guantanamo Bay to the oversight of federal courts even though it has never before been thought to be within their jurisdiction, and thus making it a foolish place to have housed alien wartime detainees,” Scalia writes. Stevens writes that it does not matter what status the Guantanamo inmates have regarding the question of whether they should have access to a US court. “What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.” And this, he writes, they do. The case is subsequently sent back to a lower court to consider the prisoners’ claims. [Guardian, 6/28/2004]Side-Stepping the Ruling - The media characterizes the decision as a rebuke for the Bush administration, which had argued that the courts have no right to interfere in the commander in chief’s decisions involving wartime policies. However, the decision says nothing about what rights the detainees might have once they get inside a courtroom, and therefore actually places little real restraint on the government. White House officials will decide that the detainees have no rights in the courtroom whatsoever—although the Court has ruled that they can file lawsuits, those lawsuits must be dismissed out of hand because the detainees have no right to actually present a case. The Republican-led Congress will later pass a law stripping courts of jurisdiction over Guantanamo lawsuits. [Savage, 2007, pp. 192]

In the case of Jose Padilla v. Donald Rumsfeld (see June 9, 2002), the Supreme Court votes 5-4 in favor of the government, declining to rule on the basis of a technicality. The majority argues that Padilla’s petition was incorrectly filed in New York rather than in South Carolina, where he is currently held. While Padilla was held in New York in preparation for an appearance before a grand jury, Defense Secretary Rumsfeld designated him an enemy combatant. Padilla was thereupon transferred to military custody and sent to a naval brig in South Carolina to be detained indefinitely. His lawyer meanwhile, unaware of her client’s transfer, filed a habeas corpus petition in New York against Rumsfeld (see June 11, 2002). This was erroneous, says the majority, which rules that Padilla has to re-file his petition in South Carolina. Four dissenting judges condemn the “secret transfer” of Padilla. Justice John Paul Stevens, writing for the minority, declares, “At stake in this case is nothing less than the essence of a free society.” Stevens also condemns the use of “incommunicado detention for months on end” as a means “to extract information” and places it among the “tools of tyrants.” [Supreme Court opinion on writ of certiorari. Shafiq Rasul, et al. v. George W. Bush, et al., 6/28/2004] Therefore, in essence, the majority declines to rule on the merits of the case. [Savage, 2007, pp. 193]

Yaser Esam Hamdi. [Source: Associated Press]In the case of Yaser Esam Hamdi v. Donald Rumsfeld, the Supreme Court rules 8-1 that, contrary to the government’s position, Hamdi (see December 2001), as a US citizen held inside the US, cannot be held indefinitely and incommunicado without an opportunity to challenge his detention. It rules he has the right to be given the opportunity to challenge the basis for his detention before an impartial court. Justice Sandra Day O’Connor writes for the majority: “It would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process.” Hamdi, on the other hand, apart from military interrogations and “screening processes,” has received no process. Due process, according to a majority of the Court, “demands some system for a citizen detainee to refute his classification [as enemy combatant].” A “citizen-detainee… must receive notice of the factual basis for his classification, and a fair opportunity to rebut the government’s factual assertions before a neutral decision-maker.” However, O’Connor writes, “an interrogation by one’s captor… hardly constitutes a constitutionally adequate factfinding before a neutral decisionmaker.” Conservative Dissent: President Has Inherent Power to Detain Citizens during War - Only Justice Clarence Thomas affirms the government’s opinion, writing, “This detention falls squarely within the federal government’s war powers, and we lack the expertise and capacity to second-guess that decision.” [Supreme Court opinion on writ of certiorari. Shafiq Rasul, et al. v. George W. Bush, et al., 6/28/2004] Thomas adds: “The Founders intended that the president have primary responsibility—along with the necessary power—to protect the national security and to conduct the nation’s foreign relations. They did so principally because the structural advantages of a unitary executive are essential in these domains.” [Dean, 2007, pp. 105]'A State of War Is Not a Blank Check for the President' - The authority to hold Hamdi and other such US citizens captured on enemy battlefields derives from Congress’s Authorization to Use Military Force (AUMF—see September 14-18, 2001). Justice Antonin Scalia dissents from this portion of the majority ruling, saying that because Congress had not suspended habeas corpus, Hamdi should either be charged with a crime or released. The Court also finds that if Hamdi was indeed a missionary and not a terrorist, as both he and his father claim, then he must be freed. While the Court does not grant Hamdi the right to a full criminal trial, it grants him the right to a hearing before a “neutral decision-maker” to challenge his detention. O’Connor writes: “It is during our most challenging and uncertain moments that our nation’s commitment to due process is most severely tested; and it is in these times that we must preserve our commitment at home to the principles for which we fight abroad.… We have long made clear that a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.” Affirms President's Right to Hold US Citizens Indefinitely - Although the media presents the ruling as an unmitigated defeat for the Bush administration, it is actually far more mixed. The White House is fairly pleased with the decision, insamuch as Hamdi still has no access to civilian courts; the administration decides that Hamdi’s “neutral decision-maker” will be a panel of military officers. Hamdi will not have a lawyer, nor will he have the right to see the evidence against him if it is classified. This is enough to satisfy the Court’s ruling, the White House decides. In 2007, author and reporter Charlie Savage will write: “[T]he administration’s legal team noted with quiet satisfaction that, so long as some kind of minimal hearing was involved, the Supreme Court had just signed off on giving presidents the wartime power to hold a US citizen without charges or a trial—forever.” The Justice Department says of the ruling that it is “pleased that the [Court] today upheld the authority of the president as commander in chief of the armed forces to detain enemy combatants, including US citizens.… This power, which was contested by lawyers representing individuals captured in the War on Terror, is one of the most essential authorities the US Constitution grants the president to defend America from our enemies.” [Savage, 2007, pp. 193-194]

Wisconsin Right to Life logo. [Source: Dane101 (.com)]After the passage of the Bipartisan Campaign Reform Act of 2002 (BCRA—see March 27, 2002), also known as the McCain-Feingold law after its original sponsors, and the 2003 McConnell Supreme Court decision that upheld the law (see December 10, 2003), corporations and labor unions are prohibited from airing ads that attack candidates but avoid specific language that turns the ads from general commercials into “campaign” ads within 30 days of a primary election or 60 days of a federal election. Wisconsin Right to Life (WRTL) comes to anti-abortion and anti-campaign finance lawyer James Bopp Jr. (see November 1980 and After) with a dilemma. The WRTL wants to run ads attacking Senator Russ Feingold (D-WI), a powerful advocate of abortion rights, for his record of opposing President Bush’s judicial nominees. It intends to use the ads as campaign attack ads against Feingold, but skirt the BCRA’s restrictions by not specifically discouraging votes for him, thereby giving the appearance of “issue” ads and thusly not running afoul of the BCRA. Bopp is worried that the McConnell decision, just rendered, would make the Court reluctant to reverse itself so quickly. Bopp knows that the McConnell decision was in response to a broad challenge to the BCRA that argued the law was unconstitutional in all circumstances. Bopp decides to challenge the BCRA on behalf of the WRTL on narrower grounds—to argue that the specific application of the BCRA in this instance would violate the group’s First Amendment rights. He decides not to file a complaint with the Federal Election Commission (FEC) because of that agency’s notoriously slow response time, but instead files a preemptive challenge in court objecting to the BCRA’s ban on “issue advertisements” in the weeks before elections. Bopp is encouraged by the prospects of a court challenge that may wend its way to the Supreme Court, as the “swing” vote in McConnell was Justice Sandra Day O’Connor, who has been succeeded by the more conservative Samuel Alito (see October 31, 2005 - February 1, 2006). [New Yorker, 5/21/2012] Bopp will prove to be correct, as the Supreme Court will find in WRTL’s favor (see June 25, 2007).

The White House sends a classified memo to the CIA. The contents of the memo will remain secret, but the American Civil Liberties Union (ACLU) and the Washington Post will later learn that it approves “harsh tactics” by CIA interrogators in questioning suspected terrorists. The memo was requested by CIA Director George Tenet, who asked for legal cover for the torture and harsh interrogation methods employed by CIA interrogators in the aftermath of the Abu Ghraib scandal. Tenet had already asked for, and received, a similar legal authorization a year earlier (see June 1, 2003). [Washington Post, 10/15/2008; American Civil Liberties Union [PDF], 1/28/2009 ]

Deputy Attorney General James Comey calls US Attorney Carol Lam over her office’s “underperformance” with regards to firearms prosecutions under the Project Safe Neighborhoods (PSN) initiative (see March 10, 2004). Comey tells Lam that PSN is a high priority for the Justice Department, and “something incredibly important to the attorney general and me, and to the president.” He tells her that he wants her “to really focus on this and make sure you are not missing something.” He acknowledges that different districts handle gun prosecutions differently, depending on the individual state’s gun laws, and notes that he is not calling “just for the sake of getting your [PSN] numbers up.” When asked (see September 29, 2008) if he thought she understood that she needed to get her PSN numbers higher, Comey will say, “I was keen not to convey that directly.” He understands that California has quite restrictive state gun laws, and state prosecutors handle many cases that federal law enforcement officials such as US Attorneys would handle in other states. However, Comey does expect her numbers to increase because he called her about the issue. He does not tell her that a failure to improve her PSN numbers would warrant her termination. Spencer Pryor, a counsel in Comey’s office and a participant in the telephone conversation between Comey and Lam, sends a memo to Kyle Sampson, a lawyer on the staff of Attorney General Alberto Gonzales, summarizing the results of the calls to Lam and other “underperforming” US Attorneys. Pryor notes that Lam acknowledged Comey’s concerns, but stated that her office had received no PSN resources. Pryor notes that Lam is incorrect, that she has received another prosecutor for PSN cases. Lam also says during the call that her district’s PSN case screening process is “broken” and a new system would help boost prosecution numbers. Pryor also notes that state prosecutors handle many firearms cases because of California’s strict gun laws. Pryor concludes that Lam needs more resources to adequately prosecute PSN cases. Lam sends an email to her staff detailing the conversation with Comey, tells them that their district ranks 93rd out of 94 US Attorneys in gun prosecutions (only 20 in the previous year), and that she told Comey that while their numbers will increase in the coming months, he should not expect a “meteoric rise.” She cites California’s gun laws and the “immense” caseload of her office as reasons why their numbers are so low. She tells her staff that she knows Comey wants the PSN numbers to rise. She later says she works with local law enforcement agencies to have them refer any firearms cases to her office where the federal sentence would exceed the state sentence by 24 months. Moreover, she will say, in 2005 and 2006 her office will make concerted efforts to prosecute more firearms cases. However, she will say, those measures are “a solution in search of a problem,” and her office will get few referrals. [US House of Representatives, Committee of the Judiciary, 4/13/2007 ; US Department of Justice, Office of the Inspector General, 9/29/2008]

Navy General Counsel Alberto J. Mora writes a secret, but unclassified, memo to Vice Admiral Albert Church, who led a Pentagon investigation into abuses at the US detention facility at Guantanamo Bay. Mora writes the memo in an attempt to stop what he sees as a disastrous and unlawful policy of authorizing cruel and inhuman treatment of terror suspects. The memo details in chronological fashion Mora’s earlier attempts to speak out against the Bush administration’s decision to circumvent the Geneva Conventions (see January 9, 2002 and January 11, 2002). Specific Problems - Mora, a veteran of the Reagan and George H. W. Bush administrations and a strong supporter of the “war on terror,” argues that a refusal to outlaw cruelty toward US-held terrorist suspects is an implicit invitation to abuse. Mora also writes that the Bush administration’s legal arguments that justify an expansion of executive power in everything from interrogations to warrantless wiretapping are “unlawful,” “dangerous,” and “erroneous” legal theories. Not only are they wrong in granting President Bush the right to authorize torture, he warns that they may leave US personnel open to criminal prosecution. While the administration has argued that it holds to humane, legal standards in interrogation practices (see January 12, 2006), Mora’s memo shows that from the outset of the administration’s “war on terror,” the White House, the Justice Department, and the Defense Department intentionally skirted and at times ignored domestic and international laws surrounding interrogation and detention of prisoners. Cruelty and Torture - Mora will later recall the mood in the Pentagon: “The mentality was that we lost three thousand Americans [on 9/11], and we could lose a lot more unless something was done. It was believed that some of the Guantanamo detainees had knowledge of other 9/11-like operations that were under way, or would be executed in the future. The gloves had to come off. The US had to get tougher.” But, Mora will say, the authorization of cruel treatment of detainees is as pernicious as any defined torture techniques that have been used. “To my mind, there’s no moral or practical distinction,” he says. “If cruelty is no longer declared unlawful, but instead is applied as a matter of policy, it alters the fundamental relationship of man to government. It destroys the whole notion of individual rights. The Constitution recognizes that man has an inherent right, not bestowed by the state or laws, to personal dignity, including the right to be free of cruelty. It applies to all human beings, not just in America—even those designated as ‘unlawful enemy combatants.’ If you make this exception, the whole Constitution crumbles. It’s a transformative issue.… The debate here isn’t only how to protect the country. It’s how to protect our values.” [Mora, 7/7/2004 ; New Yorker, 2/27/2006]

In response to the Supreme Court’s ruling a week before (see June 28, 2004), Deputy Secretary of Defense Paul Wolfowitz signs an Order Establishing a Combatant Status Review Tribunal thereby establishing “Combatant Status Review Tribunals” to review each Guantanamo detainee and decide whether the prisoner is an unlawful enemy combatant. [US Department of Defense, 7/7/2004 ] The tribunals will use the following definition of an unlawful combatant: “Any individual who was part of supporting Taliban or al-Qaeda forces or was associated with forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed belligerent acts or directly supported hostilities in aid of enemy armed forces.”
[New York Times, 8/24/2004]

Margaret Chiara, the US Attorney for the Western District of Michigan (see November 2, 2001), undergoes her first Evaluation and Review Staff (EARS) performance evaluation, as mandated by the Justice Department. The evaluation is generally positive, finding that Chiara is “a well regarded, hard-working, and capable leader who had the respect and confidence of the judiciary, the agencies, and USAO [US Attorney’s Office] personnel.” However, the evaluation finds “discontent within the criminal division” in Chiara’s office, based on the perceptions of some of her Assistant US Attorneys that some people are being rewarded for hard work more than others. A later draft report notes that “[m]any AUSAs reported to evaluators [concerns about] the number and size of awards given to other AUSAs during the last 12 months. This information was found by evaluators to be generally inaccurate.” [US Department of Justice, Office of the Inspector General, 9/29/2008] A subsequent EARS report, issued in June 2005, praises Chiara and her office for “effectively” implementing the department’s national priorities, and notes how effectively the office has worked in “dismantling and disrupt[ing] drug organizations” in Chiara’s district. It also notes a significant increase in firearms cases being referred to state and local authorities. Chiara has a “firm grasp on [the district’s] unique crime problems and issues,” the report notes, singling out her deft handling of “violent crimes in Indian Country.” And it praises the “management principles applied in your district,” resulting in “high quality work from your personnel.” [US House of Representatives, Committee on the Judiciary, 5/21/2007]

Jack Goldsmith, the head of the Justice Department’s Office of Legal Counsel (OLC), sends a classified memo to Attorney General John Ashcroft. The contents of the memo remain secret, but the American Civil Liberties Union (ACLU) will later learn that the memo concerns the ramifications of a recent Supreme Court decision on gathering foreign intelligence. Presumably, Goldsmith is writing about the Hamdi decision, in which the Court ruled that enemy combatants and detainees have the right to due process in the US justice system (see June 28, 2004), but this is by no means certain. [American Civil Liberties Union [PDF], 1/28/2009 ]

Conservative radio host Michael Savage unleashes a barrage of accusations against Democrats, while commenting on the ongoing Democratic National Convention. One topic of attention is voting. Savage lists the kinds of people he believes should be denied the vote: “people on welfare,” “people with less than 100 IQ,” and “illegal aliens.” He accuses Democrats of trying to influence the election by recruiting illegal aliens to vote, saying: “I’ll go down the list of people who should not have the right to vote. Let’s start with illegal aliens. Should they have the right to vote? Course they shouldn’t, but they do. They’re being courted by the Democrats as we speak.” There have been isolated instances of undocumented immigrants and non-citizens casting votes, but no state allows non-citizens of any stripe to vote in federal elections. A very small number of municipalities in Maryland and Massachusetts allow non-citizens to vote in local elections. Savage provides no evidence of the widespread voter fraud of which he accuses Democrats of enacting. [Media Matters, 7/28/2004]

The mobile trailer where Combatant Status Review Tribunals are held. [Source: US Navy]At Guantanamo, the first of the Combatant Status Review Tribunals (see July 7, 2004) convenes to determine whether the designations of 585 detainees at Guantanamo as unlawful enemy combatants are just. The hearings were ordered by the Supreme Court which ruled in June that detainees have the right to challenge their detention (see June 28, 2004). The hearings, open to only a small number of reporters, are conducted by three military officers. Each hearing will generally take about two hours. The defendants are not required to cooperate or even be present during the hearings. [New York Times, 8/24/2004] The burden of proof during the tribunal hearings lies with the detainees, although they are hardly in a position to make their case. They are not permitted attorneys to represent their case. Instead, each detainee is assigned a “personal representative,” who is a military officer, not a lawyer or advocate. The detainees can be denied information about how, where, and from whom incriminating information about them originates. [New York Times, 8/24/2004] Although the detainees may call witnesses or present evidence, the Los Angeles Times reports that they are rarely permitted to put forward any evidence or offer the testimony of witnesses in their defense. According to the newspaper, their requests are frequently turned down as “irrelevant.” Other evidence is often ruled inadmissible. [Los Angeles Times, 11/7/2004] Government prosecutors, however, are permitted to use a wider range of types of evidence than that which is permissible in a US criminal court. According to the order establishing the tribunals: “The Tribunal is not bound by the rules of evidence such as would apply in a court of law. Instead the Tribunal shall be free to consider any information it deems relevant and helpful to a resolution of the issue before it. At the discretion of the Tribunal, for example, it may consider hearsay evidence, taking into account the reliability of such evidence in the circumstances.” [US Department of Defense, 7/7/2004 ]

US Representative Darrell Issa (R-CA) and 13 other representatives sign a letter to Attorney General John Ashcroft protesting the Justice Department’s policy towards prosecuting “alien smugglers,” or “coyotes,” who bring illegal immigrants across the US-Mexican border. Issa, who wrote the letter, says that the DOJ should adopt a “zero-tolerance” policy towards “alien smuggling” and should prosecute everyone accused of such a crime. Issa refers to decisions by US Attorney Carol Lam of the District of Southern California (see November 8, 2002) not to prosecute persons charged with the crime of “alien smuggling,” and references the case of Antonio Amparo-Lopez as an example of a “missed opportunity” to prosecute such an alleged criminal (see February 2, 2004). Issa writes: “It is unfortunate and unacceptable that anyone in the Department of Justice would deem alien smuggling, on any level or by any person, too low of a priority to warrant prosecution in a timely fashion. In our view, a lack of available resources for prosecution is not a valid reason for a decision not to prosecute and, in fact, would signify a mismanagement of your department’s priorities.” [US Department of Justice, 3/23/2007 ] Issa represents California’s 49th District, which centers on San Diego and is part of Lam’s federal district. [Healthy City, 8/2011 ] Assistant Attorney General William Moschella will send Issa a brief reply defending the Justice Department’s prosecution practices (see (December 30, 2004)). Issa’s spokesperson Frederick Hill will later tell columnist Byron York: “We were stumped in terms of getting information to explain the scope of the problem. We put the word out on the street that we were interested in getting more information about this.” York later writes, “Issa was hoping for a tip—perhaps from someone inside a law-enforcement organization—to give him the information he had been seeking.” [National Review, 3/28/2007]

The Republican National Committee (RNC) requires supporters to sign a “loyalty oath” to President Bush before distributing tickets to a rally in Albuquerque, New Mexico, featuring Vice President Dick Cheney. The rally takes place on July 31. Anyone who is not a verifiable Republican contributor or volunteer must sign the following oath before receiving their tickets: “I, [full name]… do herby (sic) endorse George W. Bush for reelection of the United States.” The form warns that signers “are consenting to use and release of your name by Bush-Cheney as an endorser of President Bush.” The RNC says the “loyalty oaths” are designed to keep “hecklers” out of the rally, and a local official says a “Democrat operative group” was trying to infiltrate the limited-seating event. The Washington Post later reports that the local GOP refused to give tickets to even uncommitted voters who wanted to hear Cheney speak. The presidential campaign of John Kerry (D-MA) has long charged that the Bush campaign routinely screens attendees of Bush’s speeches. A spokesman for the Kerry campaign says Democrats would not impose any sort of loyalty requirements on people attending their nominees’ speeches. The Post notes that at a recent Kerry appearance in New Mexico, a group of young men in the crowd began chanting “Viva Bush!” during Kerry’s speech. [Washington Post, 8/1/2004]

Bradley Schlozman, a deputy in the Justice Department’s Voting Rights Section of the Civil Rights Division (CRD), receives an email from his supervisor, John Tanner, asking him to bring coffee for both of them to a meeting they are both scheduled to attend. Schlozman asks how Tanner likes his coffee and Tanner replies that he likes it “Mary Frances Berry style—black and bitter.” Berry, an African-American, chaired the US Commission on Civil Rights from 1993 to 2004. Schlozman forwards the email exchange to several CRD officials with the comment, “Y’all will appreciate Tanner’s response.” Shortly thereafter, he is forced to write a written apology for his action. [Washington Post, 1/13/2009]

The American Civil Liberties Union warns that InfraGard, the private organization that cooperates with the FBI in law enforcement and other areas (see 1996-2008), is a potential threat to constitutional freedoms. “There is evidence that InfraGard may be closer to a corporate TIPS program [TIPS is a program proposed by the Bush administration to encourage Americans to spy on one another], turning private-sector corporations—some of which may be in a position to observe the activities of millions of individual customers—into surrogate eyes and ears for the FBI,” the ACLU says in its report, “The Surveillance-Industrial Complex: How the American Government Is Conscripting Businesses and Individuals in the Construction of a Surveillance Society.” [Progressive, 2/7/2008]

More than 300 members of the American Bar Association, including former Attorney General Nicholas Katzenbach and former FBI Director William S. Sessions, sign a statement condemning the “torture memos.” These memos, they write, “ignore and misinterpret the US Constitution and laws, international treaties, and rules of international law.” The statement further denounces the lawyers who wrote them, saying they “have sought to justify actions that violate the most basic rights of all human beings.”
[Cox News Service, 8/5/2004; Truthout (.org), 8/29/2004] They tried to “circumvent long established and universally acknowledged principles of law and common decency,” the lawyers charge.
[Washington Post, 8/5/2004]

The Nuclear Regulatory Commission (NRC) announces that it will no longer inform the public as to which nuclear energy plants have passed, or failed, security tests. The NRC claims the new restrictions are to keep potentially harmful information out of terrorist hands (see Between July 9 and July 16, 2001); critics argue the policy prevents the public from pressuring corporate executives to keep their plants safe (see Late July, 2003). Soon afterward, the NRC will move to withdraw large amounts of unclassified information, previously available to the public, from public view. Agency spokeswoman Sue Gagner will say that the move is to ensure that “information that could be helpful to a terrorist” is not available, but the upshot of both decisions is that only officials employed by the nuclear industry can discuss regulatory and security changes—public citizens and watchdog organizations no longer have the information required to pursue such issues. [Savage, 2007, pp. 103]

The press reports that according to a Justice Department investigation, Senator Richard Shelby (R-AL), then the ranking Republican on the Senate Intelligence Committee, leaked highly classified information to Fox News reporter Carl Cameron regarding al-Qaeda communications in the hours before 9/11 (see June 19, 2002). After Vice President Dick Cheney threatened the then-chairman of the Senate Intelligence Committee, Bob Graham (D-FL—see June 20, 2002), Graham and then-House Intelligence Committee chairman Porter Goss (R-FL) pushed for a Justice Department investigation into the leak. Though the FBI and the US Attorney’s Office conducted a probe, and even empaneled a grand jury, the Justice Department decided not to prosecute anyone, and instead turned Shelby’s name over to the Senate Ethics Committee, which will decline to pursue charges against him. Shelby states that he did not leak any classified information to anyone, and says he has never been informed of any specific allegations. The FBI demanded that 17 senators turn over phone records, appointment calendars, and schedules. One Senate Intelligence Committee staffer told the FBI that Shelby had leaked the information to show the shortcomings of the intelligence community in general and CIA Director George Tenet in particular. Though two senior Justice Department officials, then-Deputy Attorney General Larry Thompson and then-criminal division chief Michael Chertoff, refused to approve subpoenas for journalists, Cameron confirmed to FBI investigators that he was a recipient of Shelby’s leak. He also told investigators that he saw Shelby talking with CNN’s Dana Bash; after Shelby’s discussion with Bash, Cameron divulged the information Shelby had leaked to her, and CNN broadcast the story a half-hour after the conversations. Cameron told FBI agents he was irritated that Shelby had shared the same information with a competitor, and added that he delayed broadcasting the story because he wanted to ensure that he was not compromising intelligence sources and methods. Cameron was never subpoenaed and did not testify under oath. Bash refused to cooperate with the investigation. [Washington Post, 8/5/2004; National Journal, 2/15/2007]

The Federal Election Commission (FEC) dismisses the complaint “Citizens United v. Michael Moore and Fahrenheit 9/11.” The conservative lobbying group Citizens United (CU—see (May 11, 2004)) had complained to the Federal Election Commission (FEC) that liberal documentarian Michael Moore released a movie, Fahrenheit 9/11 (see June 25, 2004), that was so critical of the Bush administration that it should be considered political advertising. If the movie is indeed political advertising, under federal law it cannot be shown within 30 days before a primary election or 60 days before a general election. The FEC dismisses the complaint, finding no evidence that the movie’s advertisements had broken the law. The movie’s distributors, Lions Gate, assure the FEC that they do not intend to advertise the movie during the time periods given under the law. [Federal Election Commission, 8/6/2004; Moneyocracy, 2/2012] In the aftermath of the FEC decision, CU leaders Floyd Brown (see September 21 - October 4, 1988) and David Bossie will decide that they can do what Moore did, and decide to make their own “documentaries.” Bossie realized after Fahrenheit 9/11 aired that it, and the television commercials promoting it, served two purposes—attacking President Bush and generating profits. Having already conducted an examination of the career of former First Lady Hillary Clinton (D-NY), now a sitting senator with presidential aspirations, the organization will decide to make its first “feature film” about her (see January 10-16, 2008). [New Yorker, 5/21/2012]

Daniel Levin, the acting head of the Justice Department’s Office of Legal Counsel (OLC), sends a draft memo to Deputy Attorney General James Comey. The memo remains secret, but the American Civil Liberties Union (ACLU) will learn that it details the OLC’s views on a decision to be made by Comey on a classified intelligence collection activity. [ProPublica, 4/16/2009]

After an oral argument in the US District Court for the Southern District of New York, Judge Alvin K. Hellerstein orders the Pentagon and other government agencies to comply with the Freedom of Information Act and provide the American Civil Liberties Union and other civil rights groups documents about detention and interrogation activities regarding prisoners in Afghanistan, Iraq, Guantanamo, and elsewhere. The government must comply by August 23, the court orders. [Reuters, 8/12/2004]

Representative Heather Wilson (R-NM) writes a letter to US Attorney David Iglesias complaining about what she considers to be evidence of possible voter fraud in her district. She reports that an unusually large number of mailings from her office to newly registered voters are being returned as undeliverable. She asks Iglesias to “investigate whether these voter registrations were lawful and whether any organizations or groups are intentionally causing false voter registration forms to be filed with the county clerk.” Iglesias will not respond to Wilson’s letter until October 29, 2004, just days before the November elections, and will inform Wilson that he is referring her complaint to the FBI “for their review and possible action. The FBI will determine whether a federal investigation may be warranted.” Wilson will forward Iglesias’s response to her chief of staff with the handwritten comment: “What a waste of time. Nobody home at US Attorney’s Office.” Wilson will later state that she faults Iglesias for not pursuing her complaint in a timely manner. It is unclear whether she is aware of Iglesias’s Election Fraud Task Force, formed in September 2004 (see September 7 - October 6, 2004). The FBI will find that the undeliverable mailings referred to in Wilson’s complaints were returned because of incomplete addresses on voter registration cards (i.e. apartment numbers left out), errors by Wilson’s office in addressing the envelopes, or because the people mailings were sent to, usually college students, had since moved. The FBI will recommend, and the task force will concur, that no further investigation of Wilson’s complaints is warranted. [US Department of Justice, Office of the Inspector General, 9/29/2008] Wilson’s letter is spurred by New Mexico Republicans’ efforts to block ACORN (the Association of Community Organizations for Reform Now) from registering new voters in largely Hispanic and poor areas. The effort is being led by Matt Henderson, an Albuquerque resident and ACORN head organizer; under Henderson’s leadership, ACORN is registering thousands of new voters, whom Republicans in New Mexico and Washington, DC, correctly fear will vote largely Democratic. ACORN and other groups are battling Republican efforts to institute strict voter ID laws, which critics say will hinder poor, minority, and elderly voters from participating in elections. In 2000, the state had gone for Democrat Al Gore by a vanishingly small margin of 366 votes; both parties believe that the 2004 presidential election will be equally close. By August 2004, ACORN and other groups have signed up some 65,000 new voters in Bernalillo County, which encompasses Albuquerque. Sheriff Darren White is the person who allegedly found voter registration errors in some 3,000 forms filed with the Bernalillo County clerk, including forms lacking Social Security numbers, complete addresses, and the like. White, the chairman of the New Mexico Bush-Cheney re-election campaign, who proudly admits to being made chair in order to deliver Bernalillo County for Bush-Cheney, calls those errors evidence of massive and systematic voter fraud. He has already written to Iglesias, on August 5, asking that Iglesias investigate the “suspect” registration forms. Wilson’s letter to Iglesias comes less than two weeks after White’s letter. [Atlas, 2010, pp. 213]

Sproul & Associates, a Republican-financed consulting firm, contracts a temporary employment agency in West Virginia to hire people to register only Republicans. The hirees are provided with scripts that encourage deceptive practices and are told little about the consulting firm for whom they will be working. One of those initially hired for the job is Lisa Bragg, a 37-year-old resident of St. Albans. Responding to an ad for a “customer service” position, she visits Kelly Services, a national temp agency, in August 2004 and is offered a job. At first, the company doesn’t provided any details about the job. But the next day, when she attends an orientation, she learns that she will be registering Republican voters. Though another voter registration group in the same community which registers people of all political persuasions pays canvassers only $5.50 an hour, this job is paying $9 an hour. She and the other applicants will be canvassing at One Stop convenience stores throughout the Charleston region. According to a script provided by Kelly Services, the canvassers will approach One Stop customers and ask whether they support George Bush or John Kerry. If they indicate that they plan to vote for Bush, the canvassers should ask if the person is registered to vote and then offer a voter registration card if the person answers no. However, if the person is a Kerry supporter, they should only say thank you and provide the person with a registration card if asked. If anyone asks questions, the firm advises, “Only state you are there to conduct a simple field poll to see what neighborhood support is… a nonpartisan registration drive” If the person becomes angry, they should quietly listen and remember, “The goal is to register Republicans and to remain positive.” The canvassers are also told that people will be checking up on them in the field. Bragg later says in interviews with the press that she thinks the purpose of the monitoring was to make sure the canvassers keep to their script and avoid registering Democrats. The script is printed on Sproul & Associates and America Votes letterhead. But Sproul & Associates is not affiliated with America Votes. Kelly Services does not divulge information about Sproul to the canvassers. According to Bragg, instead the temp agency advises,“[T]he less you know about the company, the better off you are, especially if the media would come asking questions.” Bragg, a Democrat, declines the job and instead tells her story to the Charleston Gazette and Salon. [Charleston Gazette, 8/20/2004; Salon, 10/21/2004]

James Schlesinger. [Source: HBO]The four-member Independent Panel to Review Department of Defense Detention Operations completes its final report on its investigations into the prisoner abuses that are known to have taken place in US-run detention centers throughout Iraq and Afghanistan. The investigative panel, which includes James R. Schlesinger, Harold Brown, Tillie K. Fowler, and Gen. Charles A. Horner, finds that a failure of leadership, leading all the way to Defense Secretary Rumsfeld, contributed to the abuse of prisoners. Like the Fay report (see August 25, 2004), to be released the following day, and the February 2004 Taguba report (see March 9, 2004), the Schlesinger report concludes that a lack of oversight and supervision allowed incidents, such as that which occurred at Abu Ghraib, to occur. Unlike preceding investigations, the Schlesinger Panel takes issue with the notion that abuses resulted from the actions of a few bad apples and were not widespread, charging that there is “both institutional and personal responsibility at higher levels.” The panel however does not name names. Notwithstanding their criticisms of the secretary, all four members say that Rumsfeld’s mistakes were comparably less significant than those made by uniformed officers. The panel, appointed by the secretary himself, recommends against removing Rumsfeld from office. [New York Times, 8/25/2004] In sum, the panel finds: Defense Secretary Rumsfeld and his aides failed to anticipate significant militant resistance to the US invasion and did not respond quickly enough to it when its strength became apparent. [New York Times, 8/25/2004] The Department of Defense created confusion when it issued, retracted, and then re-issued its policy on interrogation methods. [New York Times, 8/25/2004] The failure to adequately staff Abu Ghraib contributed to the poor conditions and abuses that took place at the prison. The ratio of military police to prisoners at the facility was 75 to one. [New York Times, 8/25/2004] Responsibility for the abuses that took place at Abu Ghraib go beyond the handful of MPs present in the photographs. “We found a string of failures that go well beyond an isolated cellblock in Iraq,” panelist Tillie K. Fowler explains during a Pentagon press conference. “We found fundamental failures throughout all levels of command, from the soldiers on the ground to the Central Command and to the Pentagon. These failures of leadership helped to set the conditions which allowed for the abusive practice to take place.” [US Department of Defense, 8/24/2004; New York Times, 8/25/2004] Rumsfeld’s decision (see December 2, 2002) on December 2, 2002 to authorize 16 pre-approved additional interrogation procedures for use at the Guantanamo facility; his subsequent decision (see January 15, 2003) to rescind that authority, and the final April 16, 2003 decision (see April 16, 2003) providing a final list of approved techniques was “an element contributing to uncertainties in the field as to which techniques were authorized.” The methods on the list eventually “migrated to Afghanistan and Iraq where they were neither limited nor safeguarded.” [New York Times, 8/25/2004] The panel seemingly concludes that the interrogation methods approved for use in Afghanistan and at Guantanamo are lawful, fully agreeing that the Third Geneva Convention does not apply to detainees considered enemy combatants. The panel does not question whether the military was justified in classifying the detainees, or “terrorists,” as such. “The Panel accepts the proposition that these terrorists are not combatants entitled to the protections of Geneva Convention III. Furthermore, the Panel accepts the conclusion the Geneva Convention IV and the provisions of domestic criminal law are not sufficiently robust and adequate to provide for the appropriate detention of captured terrorists.” [US Congress, 9/9/2004, pp. 83 ] The panel says that Gen. Ricardo Sanchez’s decision to classify some prisoners in Iraq as enemy combatants was “understandable,” even though Combined Joint Task Force 7 “understood there was no authorization to suspend application of the Geneva Conventions… .” [US Congress, 9/9/2004, pp. 83 ] Abuses at Abu Ghraib involved both MPs and military intelligence personnel. “We now know these abuses occurred at the hands of both military police and military intelligence personnel,” the report says. “The pictured abuses, unacceptable even in wartime, were not part of authorized interrogations nor were they even directed at intelligence targets. They represent deviant behavior and a failure of military leadership and discipline. However, we do know that some of the egregious abuses at Abu Ghraib which were not photographed did occur during interrogation sessions and that abuses during interrogation sessions occurred elsewhere.… We concur with the Jones/Fay investigation’s (see August 25, 2004) conclusion that military intelligence personnel share responsibility for the abuses at Abu Ghraib with the military police soldiers cited in the Taguba investigation.” [New York Times, 8/25/2004] In Guantanamo, roughly one-third of all abuses were interrogation related. [New York Times, 8/25/2004] Contradicting the conclusions of the Red Cross report (see May 7, 2004), the Schlesinger report demonstrates that abuses were widespread. “Abuses of varying severity occurred at differing locations under differing circumstances and context,” the report’s authors write. “They were widespread and, though inflicted on only a small percentage of those detained… .” [New York Times, 8/25/2004] The abusive practices were not sanctioned by the military’s interrogation policy. “No approved procedures called for or allowed the kinds of abuse that in fact occurred. There is no evidence of a policy of abuse promulgated by senior officials or military authorities.” [New York Times, 8/25/2004] The panelists believe the abuses occurring during the night shift in Cell Block 1 of Abu Ghraib “would have been avoided with proper training, leadership and oversight.” [New York Times, 8/25/2004] Critics will say the report is a “whitewash,” noting that the panel cannot be considered independent given that it was appointed by Rumsfeld himself. Months before the panel completed its work, panelist Tillie Fowler said Rumsfeld should not be blamed for the abuses. “The secretary is an honest, decent, honorable man, who’d never condone this type of activity,” she said referring to the abuse at Abu Ghraib. “This was not a tone set by the secretary.” [New York Times, 6/6/2004]

J. William Leonard, the director of the National Archives Information Security Oversight Office, tells a House subcommitte that it is “no secret that the government classifies too much information” (see March 25, 2003). Leonard warns that this culture of overarching secrecy puts everyone at risk. Excessive secrecy makes it difficult for agencies to share information that might help to prevent terrorist attacks, he says, and can “serve as an impediment to sharing information with another agency, or with the public, who have a genuine need-to-know for the information.” [Savage, 2007, pp. 163]

The chief judge for the US District Court for the Northern District of California sends news articles about US Attorney for the Northern District of California Kevin Ryan (see August 2, 2002) to Associate Deputy Attorney General David Margolis. For some time, San Francisco newspapers have reported on turmoil and turnover in Ryan’s office, with several experienced prosecutors leaving, allegedly due to Ryan’s management style. The judge complains to Margolis about Ryan’s leadership style. Margolis discusses the situation with Mary Beth Buchanan, the head of the Executive Office of US Attorneys, and they decide to discuss the issue with Ryan. However, they take no immediate action. [US Department of Justice, Office of the Inspector General, 9/29/2008] Buchanan will later say: “The United States Attorney’s Office for the Northern District of California had a long history of problems. The problems in the office predated Kevin Ryan’s tenure as the United States Attorney. Shortly after Kevin Ryan became the United States Attorney, there were discussions about his management style. I don’t recall exactly when these communications came to the attention of the Executive Office. What I can tell you is that, at some point, these communications escalated, and there were letters that were sent to the deputy attorney general, there were numerous newspaper articles that appeared in the press. And after the escalation of these concerns, I meet [sic] with Kevin Ryan and his first assistant along with David Margolis in an attempt to address some of the management concerns.… I know that Kevin Ryan had a number of significant computer crime and intellectual property cases, so I think that there were certainly good things that were done in Mr. Ryan’s office.” [US House of Representatives, Committee on the Judiciary, 6/15/2007 ]

Leslie Hagen. [Source: MLive (.com)]Rumors begin swirling around the office of US Attorney Margaret Chiara of the Western District of Michigan (see November 2, 2001) that Chiara is having an untoward sexual relationship with a female Assistant US Attorney (AUSA), and as a result that AUSA is being given undue monetary awards, bonuses, and other incentives. These rumors will soon make their way to the Justice Department in Washington. The primary sources of the rumors are Joan Meyer, Chiara’s criminal chief, and her husband Lloyd Meyer, another AUSA. The AUSA in question, who will remain unnamed in a Justice Department investigation of the 2006 US Attorney purge (see December 7, 2006 and September 29, 2008) but is later identified in the press as Leslie Hagen, was hired in October 2002. She and Chiara were friends before the hiring, both having been female prosecutors, and according to Chiara, their friendship deepened once Hagen began working in the office. Both will deny having any sort of romantic or sexual liaison. Hagen is assigned to work with Joan and Lloyd Meyer in the criminal division. When she joined the staff, Hagen lived in the eastern part of the state, and had a long drive to and from work. Occasionally she stayed overnight in a basement apartment in Chiara’s house in Lansing to cut down on the commute. She obtained her own apartment in 2003, but sometimes stayed at Chiara’s house to take care of Chiara’s dog when Chiara was out of town. Chiara will confirm that Hagen is the only one of her employees to ever stay overnight at her home. Both Chiara and Hagen will confirm that they occasionally traveled together on business relating to Chiara’s position on the Native American Issues Subcommittee of the Attorney General’s Advisory Committee (AGAC). They took a vacation day during one such trip in Seattle, and Hagen has stayed at Chiara’s house in South Carolina on a few occasions. In mid-July 2004, Chiara was given her first EARS (Evaluation and Review Staff) performance evaluation, a mandated Justice Department review (see July 12-16, 2004). A First Assistant US Attorney (FAUSA) from another office headed the evaluation team. He and his team extensively interviewed almost all of Chiara’s staff. The review was generally positive, but the FAUSA will later recall hearing a vague rumor about a liaison between Chiara and an AUSA. He did not report it on his evaluation, but he may, he will later recall, have told the EARS staff in the Executive Office of US Attorneys (EOUSA) in Washington about it. Lloyd Meyer will admit to telling the rumor to the EARS team, and he will state that many AUSAs had told the EARS team the same rumor. The EARS team heard several complaints about inequitable distribution of awards and incentives, some centering on Hagen. The EARS team leader reviewed the awards and found them justified. Chiara’s FAUSA, Phillip Green, will tell Justice Department investigators that the rumors about Chiara and Hagen begin to permeate the office in the fall of 2004, and says Joan and Lloyd Meyer are primarily responsible for them. According to Green, Lloyd Meyer “went ballistic” after nominating himself for a EOUSA award and losing it—by an EOUSA decision—to Hagen. Green is certain Meyer began spreading the rumors after losing the award and telling staff members that Chiara “pulled strings” at EOUSA to make sure Hagen received the award. Hagen will say it is about this time that Meyer begins a “campaign” to drive her out of the office. Joan Meyer, Green will say, is going along with her husband, who is the primary source of the rumors, though she believes the rumors as well. When the Justice Department investigators interview Joan Meyer, she will admit to having no direct knowledge of any affair, but will cite the fact that the two drove to and from work together and she had “been noticing situations,” “putting two and two together,” “talking to people,” and the like. Joan Meyer complains to Green that Hagen had won a “huge award” of some $20,000, a complaint Green will say is entirely false. Chiara changed the bonus award process in the spring to give bonuses only to employees who received “outstanding” performance evaluations for the previous year, shutting some staff members out of the bonus process and fueling the perception among some that the bonuses were being awarded unfairly. An allegation in December 2004 that Chiara unfairly gave Hagen a time-off award fuels the rumors in the office even more; the award comes after Hagen completes an arduous trial, and her colleagues in the trial also receive time-off awards. Other rumors, such as that Chiara unfairly gives Hagen the “lion’s share” of bonus money, prove false upon Justice Department review of the office financial records. Moreover, Green, not Chiara, makes the bonus determinations. Jane Meyer confronts Chiara over the rumors of her “relationship” with Hagen in early 2005, shortly after Chiara elevates her to criminal chief. Chiara answers that she has no business asking her such questions, that it would be impossible for her to properly supervise Hagen if they were in a relationship, and the question is irrelevant to the business of the office. Chiara will say that by the middle of 2005, the Meyers have created a “reign of terror” in the office to the point where the office is a “disaster.” Lloyd Meyer is detailed to a position in the Justice Department’s Office of Legal Policy in June 2005, blaming Chiara for creating an “intolerable” climate in the office (see September 2005). In October 2005, Hagen is detailed to a position in EOUSA. The false rumors and allegations will become part of the basis for Chiara’s firing in December 2006. [Los Angeles Times, 7/29/2008; US Department of Justice, Office of the Inspector General, 9/29/2008]

ACORN (the Association of Community Organizations for Reform Now) launches a campaign to register thousands of new voters in Florida, using a referendum that would raise the state’s minimum wage as a method to drum up support. One study shows that the referendum, if enacted, would raise salaries among the working poor by $443 million. A coalition driven by ACORN registers some 210,000 new voters, mostly in urban areas, before Election Day. Opponents of the referendum—mostly business leaders and Florida Republicans—fight back by mounting an ad campaign comparing the effect of the raised minimum wage to the devastation wrought by Florida’s recent hurricanes, and labeling it a “job killer.” They also level accusations of voter fraud, accusing the coalition of filing thousands of fraudulent registrations. National and state Democrats are hesitant to embrace the referendum, even though some polls show that as many as 81 percent of Floridians support it. Presidential candidate John Kerry (D-MA) rarely mentions the referendum during his campaign swings through the state. Although Kerry loses Florida and Republicans win a majority of the Congressional elections, the referendum wins in a landslide, garnering 77 percent of the votes cast and winning in every county, including the conservative counties in the Panhandle. In 2010, author John Atlas will write, “Kerry made the fatal mistake of not publicly embracing the minimum wage ballot.” [Atlas, 2010, pp. 112-114]

A Los Angeles Times editorial says the recent hearings before a military commission in Guantanamo (see July 30, 2004)
(see August 2004)
(see August 24, 2004) are “slapdash preliminary hearings,” which “violated basic tenets of fairness.” They resembled “something between a Mel Brooks farce and the kangaroo courts of former Ugandan dictator Idi Amin,” the paper says. [Los Angeles Times, 9/2/2004]

Human Rights Watch says trials being held in Guantanamo before military commissions are “fundamentally flawed” and “fall far short of international due process standards.” [Human Rights Watch, 1/9/2004]

The US Attorney’s Office (USAO) of New Mexico, headed by David Iglesias (see October 18, 2001), announces the formation of a state and federal task force to address the issue of voter fraud in the state. Iglesias forms the task force in part because of complaints by Republican lawmakers and state party officials about what they term “rampant” voter fraud in the state that is, they say, affecting elections (see August 17, 2004), and as a response to Attorney General John Ashcroft’s stated goal to ramp up voter fraud investigations throughout the nation. “It appears that mischief is afoot and questions are lurking in the shadows,” Iglesias tells local reporters. 'Suspicious' Registration Forms - According to Nancy Scott-Finan of the Justice Department’s Office of Legal Affairs, Iglesias opens the task force after hearing from Bernalillo County Clerk Mary Herrara, a Democrat, who wanted to discuss some 3,000 “suspicious resignations” with him. He has also received a letter from Bernalillo County Sheriff Darren White, a Republican, about “thousands” of “questionable” voter registrations—the same 3,000 “suspect” forms—turned in by voter-outreach groups working primarily on behalf of Democrats. (Iglesias was invited to take part in what New Mexico Republican Party Chairman Allen Weh called “the [New Mexico Republican P]arty’s voter fraud working group” a month ago, but declined. Weh forwarded the invitation to a number of prominent New Mexico Republicans, including Senator Pete Domenici, Representative Heather Wilson—see August 17, 2004—and others. Domenici’s chief of staff Steve Bell called the issue a “critical matter.” Iglesias did not join the group, and no evidence exists that the group was actually formed.) Iglesias wants to avoid the perception of partisanship in his task force, so aside from Republicans on his task force, he asks Secretary of State Rebecca Vigil-Giron (D-NM) to join; she assigns a member of her office to serve in the organization. Officials from the New Mexico Department of Public Safety (the state’s law enforcement agency), the US Veteran’s Administration Inspector General’s Office, the FBI, and the Justice Department’s Public Integrity Section (PIN) also agree to participate. Two days after the announcement, Iglesias announces that a voter fraud hotline for the task force has been activated, and says that all allegations of fraud will be thoroughly investigated. Rumaldo Armijo, Iglesias’s executive assistant, and two other Assistant US Attorneys are assigned to the task force. New Mexico Republicans Critical of Task Force - However, some New Mexico Republicans complain that the task force’s bipartisanship renders it useless. Mickey Barnett, a powerful state Republican, writes an email to Iglesias informing him that “[m]ost of us think a task force is a joke and unlikely to make any citizen believe our elections and voter registrations are honest.” New Mexico attorney Patrick Rogers, another prominent state Republican, says of the State Department representative that he has “includ[ed] the target on the task force.” White, the co-chair of the Bush-Cheney re-election campaign in New Mexico who will later tell reporters he was brought on by the Bush-Cheney campaign in order to help win Bernalillo County, later says he would have preferred the USAO to investigate and prosecute cases without the involvement of state agencies, and he believed Iglesias’s concerns about bipartisanship to be misguided. Vigil-Giron will also question the task force, saying: “This is just an attempt to let people know that Big Brother is watching. It may well be aimed at trying to keep people away from the polls.” Iglesias meets with the task force members several times before the November 2 elections, and reminds them that Justice Department policy forbids his office from indicting people on voter fraud charges before upcoming elections, in order to avoid the perception that the indictments are being filed to impact the elections. Almost All Complaints Minor, No Criminal Cases Developed - Almost all of the complaints received by the task force are quite minor—complaints of yard signs being stolen, harassing phone calls, and non-criminal registration issues. These complaints are forwarded to local election officials. Several more serious complaints, including the complaints from Republican lawmakers and state officials, are forwarded to either the FBI or the Department of Public Safety. Iglesias will say that when he began the task force, he thought it would develop cases worth prosecuting, but after months of work, he found that it was unable to develop a single criminal case. The task force will stop meeting after the November elections and will conclude its efforts in January 2005, but will not officially disband until 2006, after the FBI completes the last of its investigations. The Justice Department will recognize Iglesias’s task force as an example to other offices as to how voter fraud investigations should be handled, and Iglesias will give an address to a department-sponsored symposium on voter integrity (see October 2005). [Washington Post, 9/20/2004; US House of Representatives, Committee on the Judiciary, 4/13/2007 ; US Department of Justice, Office of the Inspector General, 9/29/2008; Atlas, 2010, pp. 213-216] On September 30, Senator Jeff Bingaman (D-NM) calls the Justice Department to ask about Iglesias’s task force. He speaks with Assistant Attorney General William Moschella. He says he is concerned about voter intimidation, and says he has heard no allegations of widespread voter fraud. He also says the local FBI told him the task force “was on thin ice,” apparently meaning that it is not finding anything of consequence. [US House of Representatives, Committee on the Judiciary, 4/13/2007 ]Iglesias Refused 'Show Trials,' Says Reporter - Investigative reporter Greg Palast will say of Iglesias’s voter fraud task force: “That’s where Iglesias drew the line in the sand. He said a press conference is one thing, which he probably shouldn’t have done, but literally handcuffing innocent voters for show trials—and then, of course, then you drop the case later—that is one thing he absolutely was not going to do.” [Democracy Now!, 5/14/2007]

The DVD cover for ‘Celsius 41.11.’ [Source: Citizens United]The Federal Election Commission (FEC) refuses to allow the conservative lobbying and advocacy group Citizens United (CU) to advertise on television its upcoming film Celsius 41.11—The Temperature at Which the Brain Begins to Die, a documentary that the group intends as a refutation of the documentary Fahrenheit 9/11 (see June 25, 2004), a film by liberal documentarian Michael Moore that savaged the Bush administration’s handling of the 9/11 attacks. The FEC also refuses to allow CU to pay to run the film on television. The FEC bases its decision on the Bipartisan Campaign Reform Act of 2002 (McCain-Feingold—see March 27, 2002), and its restrictions on nonprofit groups such as CU using unregulated contributions to pay for “electioneering communications” to be shown within 60 days of a federal general election. CU would broadcast the film in late September, less than 60 days before the November 2 elections. CU argued, unsuccessfully, that it is a member of the news media and therefore can use a legal exemption provided for news, commentary, and editorial content. In a 4-0 vote, the FEC rejects the argument, saying that CU intends to buy air time instead of being paid to provide content, and that its primary function is as an advocacy group and not a film production organization. FEC vice chair Ellen L. Weintraub, one of the commission’s three Democrats, says: “You don’t want a situation where people are airing campaign commercials and they are exempt from commission rules because they are considered a media event. The danger is that the exemption swallows the rules.” CU president David Bossie (see May 1998) says he is “clearly disappointed” with the ruling, and adds, “They [the FEC] want to limit free speech, and that’s what this issue is about for us.” The company marketing Fahrenheit 9/11 was not allowed to run advertisements promoting the film within 60 days of the elections, and a CU complaint against that film was dismissed after its distributors promised not to air such advertisements (see August 6, 2004). CU has helped fund the publication of a book by Bossie attacking Democratic presidential candidate John Kerry (D-MA), and has released numerous documentaries attacking the Clinton administration and the United Nations. The current film contains some material attacking Kerry, though that material is not the primary focus of the film. Bossie says the group will attempt to show the film in theaters to paying audiences within a few weeks (see September 27-30, 2004). [New York Times, 9/9/2004; New York Times, 9/30/2004]

By this date, Combatant Status Review Tribunals have been held for 55 Guantanamo detainees. The review process has been completed for 30 of them, only one of whom—an unidentified man held prisoner at Guantanamo since May 2002—has been determined not to be an enemy combatant. He will be released without compensation. [Boston Globe, 9/9/2004] The Pentagon will refuse to provide any details about the detainee or his case—who he is or why he was determined not to be an enemy combatant. [Los Angeles Times, 11/7/2004]

During the presentation and discussion of the Schlesinger report (see August 24, 2004) before the House Armed Services Committee, most Republicans, including its chairman, Representative Duncan Hunter (R-CA), say the investigation shows that only a handful of US soldiers were responsible for the abuses. Democrats however, like Representative Ike Skelton (D-MO), disagree. “We must not continue to call this the work of just a few bad apples,” Skelton says. [New York Times, 9/10/2004]

Alvin Hellerstein. [Source: Associated Press]In 2003, after reports began to surface that some detainees in US custody had been abused, the American Civil Liberties Union (ACLU) filed a Freedom of Information Act request seeking records about the treatment of all detainees caught since 9/11 and held in US custody overseas. The ACLU eventually filed a lawsuit to get the records, and on September 15, 2004, judge Alvin Hellerstein orders the CIA and other government agencies to “produce or identify” all relevant documents by October 15, 2004. [FindLaw, 12/14/2007] Hellerstein also rules that classified documents must be identified in a written log and the log must be submitted to him for review. In December 2004, the CIA and other agencies make public a huge amount of information but fail to inform the judge about the videotapes and other classified information (see December 21, 2004). Since that time, the case remains delayed with stays, extensions, and appeals. In December 2005, the CIA will destroy videotapes of the interrogations of at least two high-ranking al-Qaeda detainees (see November 2005). After the destruction of the videotapes is publicly revealed in December 2007, the New York Times will comment on the ACLU case, “Some legal experts [say] that the CIA would have great difficulty defending what seemed to be a decision not to identify the tapes to the judge, and the subsequent decision to destroy the tapes.” [New York Times, 12/13/2007] Legal analyst John Dean will later comment, “It is difficult to see why the CIA is, in fact, not in contempt, given the nature of the [ACLU] request and the judge’s order.” He will suggest that the case may represent the best chance to find out why and how the CIA destroyed the videotapes. [FindLaw, 12/14/2007]

US Attorney David Iglesias of New Mexico arranges for lawyer Patrick Rogers, a prominent Republican in the state, to meet with an FBI supervisory special agent assigned to work with Iglesias’s voter fraud task force (see September 7 - October 6, 2004). Citation of 'Fraudulent' Registration - Rogers complains that large number of voter registration forms in the state are fraudulent and must be investigated. He cites the case of 13-year-old Kevin Stout, who received a voter registration card in the mail and apparently completed it. Police soon discovered that the card was the result of a forged voter registration form apparently filled out by Christine Gonzales, a former canvasser for the Association of Community Organizations for Reform Now (ACORN) who was being paid on a per-registration basis; that organization had identified Gonzales three months earlier, fired her, and reported her to the authorities. (Stout’s father is Republican activist Glen Stout, who contacted New Mexico Republicans before contacting law enforcement.) A federal judge refused Republican efforts to change the state registration laws in response to the ACORN issue, and as a result hundreds of presumably Democratic voters registered by ACORN retained their registrations. New Mexico Republicans are furious. Citing the Stout case, state Representative Joe Thompson (R-NM), who was one of the Republicans contacted by Glen Stout, displays Kevin Stout’s registration form to reporters and proclaims, “We have proof” of massive and systematic voter fraud in New Mexico. He announces a lawsuit he and Glen Stout will file against New Mexico’s Democratic Secretary of State, Rebecca Vigil-Giron. Rogers brings the Stout issue to Iglesias’s attention. Rogers’s colleague, lawyer and Republican activist Mickey Barnett, will later say that he and other Republicans hired a private investigator to identify and locate Gonzales, but the private investigator failed to find her. Republicans Demand More Information on Voters before Elections - Four days later, Rogers tells Iglesias and Rumaldo Armijo, Iglesias’s executive assistant, in an email that because New Mexico Democrats are casting doubt on the validity of his voter-fraud claims, he wants to “dig up all past info” and asks if there is “any easy way to access the public info related to voter fraud from the [US Attorney’s Office] (public) files? Asap? Before Nov 2?” Rogers is referring to the date of the upcoming state and federal elections. (Barnett also sends emails demanding that Iglesias investigate the canvasser, whose identity he does not know.) Iglesias promises to look into Rogers’s request and “let you know what is publicly available.” Iglesias soon finds a case prosecuted in the early 1990s and provides Rogers with the public information about that case. No Prosecutable Cases; Republicans Outraged - The FBI will later identify and interview Gonzales. Both Iglesias’s office and the Justice Department will find that there is insufficient evidence of criminal behavior in the matter to warrant her prosecution. Iglesias will later say that this case is the strongest one to come out of the entire task force’s proceedings, and even it does not meet the standard for criminal prosecution. New Mexico Republicans are frustrated, having intended to use the Gonzales case to further the Thompson/Stout lawsuit. Barnett complains that Iglesias “appoint[ed] a task force to investigate voter fraud instead of bringing charges against suspects.” Matt Henderson, ACORN’s lead organizer for New Mexico, tells reporters that the lawsuit is “no different from what was going on in the civil rights movement of the 1960s. This is about a set of people trying to stop another set of people from voting.” [US Department of Justice, Office of the Inspector General, 9/29/2008; Atlas, 2010, pp. 214-216]Allegations Collapse under Scrutiny - Even before Iglesias begins his investigation, the allegations of voter fraud had begun to unravel. Several voters admitted accidentally filling out two registration forms. A large majority of the 3,000 “suspect” forms, upon examination, actually showed legitimate attempts by citizens to register to vote. On September 7, a district judge dismissed the suit against Vigil-Giron. ACORN member Yolanda Pena told the press of attempts to make false claims of voter fraud, and showed the press a copy of Kevin Stout’s registration card—it appeared to have been filled out by a child, not an ACORN worker, and seemed to have been done as a prank and not as an attempt to fraudulently register a young boy. “Instead of taking responsibility for this boy’s prank,” Pena told reporters, “the Republicans used it to try to ram a lawsuit through the courts that would have made it harder for minority voters to vote.… We are delighted that [the Republicans] lost in court. Their dirty tricks are racist and un-American.” Another ACORN representative tells reporters that he cannot understand why Gonzales’s name is on Kevin Stout’s registration form, as he had already fired Gonzales for altering other canvassers’ cards to falsely claim credit for having voters fill them out. Gonzales could not have helped Stout fill out his card or filled it out on his behalf. Lawsuit in Response - New Mexico Republicans were enraged at the suit’s dismissal and the ACORN press conferences, and attempted to file a criminal suit against Henderson, alleging that he had broken the law by keeping photocopies of submitted registration forms. (In 2000, Henderson and ACORN chapters in New Mexico had indeed kept such photocopies. At the time, that was a legal practice. Since then, the law has been changed and ACORN, like other voter-registration groups, has ceased keeping those forms. Rogers will also insist that Iglesias file felony charges against Gonzales.) New Mexico Republicans will demand that Iglesias aggressively investigate Henderson and ACORN, charging Henderson with “perjury” and “suspect” practices (see September 23 - October 2004). Iglesias will later say of Gonzales, “It appeared that she was just doing it for the money.” [Atlas, 2010, pp. 215-216]'Gin Up Voter Fraud Publicity' - In 2008, Iglesias will tell reporters that even though he found no evidence of voter fraud, he was ordered by the White House to, the reporters will write, “illegally prosecute baseless cases against innocent citizens, just to gin up voter fraud publicity.” Iglesias will say, “We took over 100 complaints” from New Mexico Republicans. “We investigated for almost two years, I didn’t find one prosecutable voter fraud case in the entire state of New Mexico.” Iglesias will blame his refusal to prosecute those cases for his 2006 firing (see December 7, 2006). “They were looking for politicized—for improperly politicized US Attorneys to file bogus voter fraud cases,” he will say. [Huffington Post, 10/28/2008]

New Mexico Republicans hammer US Attorney David Iglesias (see October 18, 2001) with demands to investigate what they perceive to be a blizzard of voter fraud cases. Iglesias has just established an election fraud task force to look into such allegations (see September 7 - October 6, 2004). On September 23, the executive director of the New Mexico Republican Party, Greg Graves, asks Iglesias to investigate the alleged theft of Republican voter registration forms from the office of a voter registration organization. On September 29, prominent New Mexico Republican Patrick Rogers sends an email to Iglesias and over 20 people associated with the New Mexico Republican Party, including staff members for Senator Pete Domenici (R-NM), Representative Heather Wilson (R-NM—see August 17, 2004), and state party chairman Allen Weh. Rogers calls for Republicans on the state and federal levels to use “voter fraud” as what he calls a “wedge issue” to influence the upcoming elections. Rogers writes in part: “I believe the [voter] ID issue should be used (now) at all levels—federal, state legislative races and Heather [Wilson]‘s race.… You are not going to find a better wedge issue.… I’ve got to believe the [voter] ID issue would do Heather more good than another ad talking about how much federal taxpayer money she has put into the (state) education system and social security.… This is the single best wedge issue, ever in NM. We will not have this opportunity again.” Referring to previous complaints he has registered with Iglesias’s office about alleged voter fraud perpetrated by an Association of Community Organizations for Reform Now (ACORN) worker (see September 15-19, 2004), Rogers writes: “Today, we expect to file a new Public Records lawsuit, by 3 Republican legislators, demanding the Bernalillo county clerk locate and produce (before Oct 15) ALL of the registrations signed by the ACORN employee.” On September 24, Weh sends Iglesias and a number of Republican figures an email about voter fraud allegations that says in part: “We are still waiting for US Attorney Iglesisas [sic] to do what his office needs to do to hold people accountable, and have informed him that doing it after the election is too late. I have copied him on this email for his info.” He sends an email to Iglesias that reads in part, “Vote fraud issues are intensifing [sic], and we are looking for you to lead.” On October 21, Graves sends Iglesias a copy of a complaint to the Bernalillo County Clerk asking that the Republican Party be allowed to inspect ACORN voter registration cards allegedly found during a drug raid. Weh continues to send emails to Iglesias about pursuing voter fraud allegations throughout the month of October, reminding him in one email, “The game clock is running!” [US Department of Justice, Office of the Inspector General, 9/29/2008] In 2008, Iglesias will write that he investigated each allegation, and, with the concurrence of the FBI and the Justice Department, found no prosecutable charges. “Being close doesn’t count in prosecutions where the government has to prove its case beyond a reasonable doubt,” he will write. “The facts did not support what the law required.” However, he will write, it is easy for partisan Republicans to conclude that he is unwilling to aggressively pursue voter fraud cases. It is not long, he will write, before he begins hearing “the rumblings of a whispering campaign among Republican operatives giving voice to their discontent.” [Iglesias and Seay, 5/2008, pp. 87] In 2007, investigative reporter Greg Palast will explain how the process worked. He will say that Republican operatives gave Iglesias and his office “110 names. They wanted them, for example, to arrest some guy named, say, roughly, if I remember, like Juan Gonzalez, and say he voted twice, stealing someone’s ID. Well, in New Mexico there may be two guys named Juan Gonzalez. So Iglesias just thought this was absolute junk, absolute junk stuff, and he wouldn’t do it. So it’s all about trying to create a hysteria about fraudulent voting.” [Democracy Now!, 5/14/2007]

Porter Goss. [Source: CIA]Porter Goss becomes the new CIA director, replacing George Tenet (John McLaughlin served as interim director for a few months after Tenet’s sudden resignation—see June 3, 2004). Goss was a CIA field agent, then a Republican representative and co-chair of the 2002 9/11 Congressional Inquiry. [Knight Ridder, 10/25/2004]Ignored Pakistan, ISI during 9/11 Investigations - He took part in secret meetings with Pakistani ISI Director Mahmood Ahmed before 9/11 and on the morning of 9/11 itself (see August 28-30, 2001 and (8:00 a.m.) September 11, 2001). Despite some press reports that Mahmood directly ordered money to be sent to hijacker Mohamed Atta, there is virtually no mention of Mahmood or Pakistan in the Inquiry report that Goss co-chaired. Such issues appear to be forgotten by the US press, but the Times of India raised them when his nomination was announced. [Times of India, 8/10/2004]Will Lead 'Purge' - During his confirmation hearings Goss pledges that he will be a nonpartisan CIA director, but he will purge the CIA of all but “true believers” in Bush’s policies shortly after becoming director (see November-December 2004). [Knight Ridder, 10/25/2004] CIA analyst Valerie Plame Wilson will later write that Goss “arrive[s] at headquarters with the clear intention to houseclean, and from the beginning [is] seen more as a crusader and occupier than former colleague. He [brings] with him several loyal Hill staffers, known for their abrasive management style, and immediately set[s] to work attempting to bring the CIA—with special emphasis on the often wild and willful operations directorate—to heel, per White House orders. White House officials had suspected that CIA officials had leaked information prior to the election about the intelligence surrounding the war in Iraq that put the agency in a better light. Thus, Goss’s orders from the administration [are] probably along the lines of ‘get control of it.’” She will write that while most at the CIA welcome the idea of reform as a means to rebuild the agency’s credibility, “Goss’s heavy-handedness [will be] bitterly resented.” Goss will fail to have any meaningful dealings with “senior agency managers,” will spend “little time with the heads of foreign intelligence services (all of whom the CIA relied on for cooperation with counterterrorism and counterproliferation matters),” will fail to sufficiently engage “in day-to-day activities,” and will fail to gain a grasp of “some of the details of operations.” [Wilson, 2007, pp. 211-212]

The conservative lobbying and advocacy group Citizens United (CU) releases a documentary intended as a refutation of the popular documentary, Fahrenheit 9/11 (see June 25, 2004), a film by liberal documentarian Michael Moore that savaged the Bush administration’s handling of the 9/11 attacks. The CU film is entitled Celsius 41.11—The Temperature at Which the Brain Begins to Die. CU spent six weeks making the film, and is releasing it in small venues around the nation after the Federal Election Commission (FEC) denied the organization permission to broadcast it on television (see September 8, 2004). (In August, the FEC dismissed a complaint against Moore over Fahrenheit 9/11 filed by CU—see August 6, 2004.) The slogan for the movie is “The Truth Behind the Lies of Fahrenheit 9/11!” The movie was written and produced by Lionel Chetwynd, who has written and produced a number of Hollywood feature films and documentaries. Chetwynd, a vocal conservative, produced the September 2003 “docudrama” 9/11: Time of Crisis, which portrayed President Bush as a near-action hero during and after the 9/11 attacks, and took significant liberties with the actual events (see September 7, 2003). Of this film, Chetwynd says: “We could have gone wall to wall with red meat on this, but we purposely didn’t. The cheap shots may be entertaining in Moore’s film, but we wanted to make the intellectual case and go beyond lecturing to the converted.” New York Times reporter John Tierney describes the movie as overtly intellectual, sometimes appearing more as a PowerPoint presentation than a film made to appeal to a wider audience. It features a point-by-point defense of Bush’s actions during the 9/11 attacks, and features “politicians, journalists, and scholars discoursing on the legality of the Florida recount in 2000, the Clinton administration’s record on fighting terrorism, and the theory of American exceptionalism.” There are a few “red meat” moments, Tierney notes, including the juxtaposition of the Twin Towers burning as Moore says in a voiceover, “There is no terrorist threat.” It also includes a few slaps against Democratic presidential candidate John Kerry (D-MA), mostly in the form of a country song where the singer Larry Gatlin sings, “John boy, please tell us which way the wind’s blowing,” a reference to the Bush campaign’s attempt to portray Kerry as a “flip-flopper” who goes back and forth in his views on various issues. The Georgetown premiere of the movie attracts some 300 viewers, almost all Republicans, according to Tierney. The audience, according to Tierney, views the film as more “thoughtful and accurate” than Moore’s film, and unlikely to make anywhere near the profits the earlier film garnered. Chetwynd says he resisted the temptation to launch an all-out assault on Kerry “the way that Moore did with Bush.” Filmgoer Jerome Corsi, who has written a bestselling book attacking Kerry’s Vietnam record, praises the film, as does Debra Burlingame, whose brother was the pilot of the airplane that was flown into the Pentagon on the morning of September 11, 2001 (see 8:51 a.m.-8:54 a.m. September 11, 2001). Burlingame, a founder of a group of 9/11 victim relatives that supports Bush, says: “Michael Moore actually used footage of the Pentagon in flames as a sight gag. It was really hard to sit there in the theater listening to people laugh at that scene knowing my brother was on that plane. I wish more people would see this film instead.” [New York Times, 9/30/2004] In October, the Washington Post’s Philip Kennicott will dismiss the film as “generat[ing] heat but no new light,” calling it “sad in a sad sort of way… dull, lazy, and inconsistent,” and suffused with an “unabashed idolatry of the Great Leader (in this case, George W. Bush)” in the same way that Nazi propagandist Leni Riefenstahl made her documentaries (he wonders, “Has the conservative worldview really been reduced to a slavish worship of authority?”). Kennicott will ask if the film is an attempt to refute Moore’s documentary or an “overlong attack ad on John Kerry,” and concludes that the film is little more than a combination of “dreadful political advertisements and dreadful political talk shows.” [Washington Post, 10/22/2004] TV Guide’s Maitland McDonagh will call the film a “shrill, repetitive screed” obviously released just in time to influence the 2004 presidential election, and bearing “all the hallmarks of having been thrown together in a heated rush.” [TV Guide, 10/2004]

Alarmed by several attempts by Vice President Cheney’s office to place the independent Judge Advocate General (JAG) corps of military lawyers under the control of the military branches’ general counsels—all of whom are political appointees—a group of retired JAG officers asks the Senate Armed Forces Committee to intervene. Cheney has tried off and on for years to place the JAGs under political control (see June 1991-March 1992), but has pushed harder in the past year because of his belief that, as military law expert Scott Silliman will later explain, “the political appointees will not contest what the president wants to do [with detainees captured and held without trial or legal representation], whereas the uniformed lawyers… are going to push back.” The JAGs find an advocate in Senator Lindsey Graham (R-SC), himself a former JAG officer, who quickly pushes a new law through Congress forbidding Defense Department employees, including general counsels, from interfering with the ability of JAG officers to “give independent legal advice” directly to military leaders. The law also rescinds an effort by the Air Force to place its senior JAG officer under its general counsel. President Bush signs the law into effect, but issues a signing statement saying that the legal opinions reached by his political appointees will still “bind all civilian and military attorneys within the Department of Defense.” [Savage, 2007, pp. 286-289]

The FBI prepares a detailed 300-page report in response to follow-up questions from the Senate Judiciary Committee about Director Mueller’s earlier testimony on May 20, 2004 (see May 20, 2004) regarding incidents of abuse known by the FBI. However the Justice Department refuses to release the report saying that it must first review it. [Newsweek, 1/6/2005]

The Supreme Court declines without comment to hear an appeal by “enemy combatant” Ali Saleh Kahlah al-Marri (see December 12, 2001 and June 23, 2003). Al-Marri has filed a civil suit, Al-Marri v. Rumsfeld, challenging his detention and his status as an enemy combatant. Previously, courts ruled that al-Marri’s lawyers should have filed the suit in South Carolina, where al-Marri is being held in a Charleston naval brig, not in Illinois, where al-Marri was attending college. The Supreme Court refused to overturn that decision. Al-Marri’s lawyers intend to refile the suit in South Carolina (see August 8, 2005). [Al-Marri v. Rumsfeld, 6/2004; Associated Press, 10/4/2004; Slate, 4/20/2006]

British Guantanamo prisoner Feroz Abbasi argues during his Combatant Status Review Tribunal hearing that he should be granted POW status in accordance with the Geneva Conventions. One of the three Tribunal members, an Air Force colonel, replies: “Mr. Abbasi, your conduct is unacceptable…. I don’t care about international law. I don’t want to hear the words ‘international law’ again.” [Sunday Times (London), 11/21/2004]

US News and World Report journalist Paul Bedard says that many Bush administration officials have shifted their communications from the government’s official, authorized email servers to private, less traceable Web mail servers. A recent report that some 20 million Clinton administration emails would be made public prompted at least one Bush official to tell Bedard, “I don’t want my email made public.” Instead, says another administration official, “It’s Yahoo!, baby,” referring to the Web provider Yahoo! and its free email service. [US News and World Report, 10/10/2004]

Accused terrorist Yaser Esam Hamdi returns to Saudi Arabia aboard a US military jet. Earlier in 2004, the US Supreme Court ruled that the US government could not continue to hold Hamdi, a US citizen, as an enemy combatant without allowing him to challenge that status (see June 28, 2004). The US government was still free to bring charges against him but instead chose to negotiate with his attorneys about a release. In exchange for his release, Hamdi agrees to renounce his US citizenship and pledge never to travel to Afghanistan, Iraq, Israel, Pakistan, Syria, the Palestinian West Bank, or Gaza. He must also report any intent to travel outside Saudi Arabia. [CNN, 10/14/2004]'Shocking Admission' of Lack of Criminal Case against Hamdi - Andrew Cohen comments in the Los Angeles Times, “If Hamdi is such a minor threat today that he can go back to the Middle East without a trial or any other proceeding, it’s hard not to wonder whether the government has been crying wolf all these years.” He calls the release “a shocking admission from the government that there is not now, and probably never has been, a viable criminal case against Hamdi.” [Los Angeles Times, 8/16/2004]Hamdi Case Used to Set Favorable Precedent? - Author and reporter Charlie Savage will agree with Cohen. “Hamdi’s release meant that a prisoner who the White House had once sworn was too dangerous to be allowed access to a lawyer was now going free—just like hundreds of prisoners from Guantanamo who were held without trial for years and then quietly released,” Savage will write. He will note that many administration critics believe Hamdi’s case had been used as a tool by the administration to get a favorable judicial precedent and, once that precedent had been put in place, the administration had no more use for Hamdi and threw him out of the country rather than actually continue with a problematic trial or legal proceeding. [Savage, 2007, pp. 199-200]

In Nevada, Eric Russell, a former employee of the Republican-funded political consulting firm, Sproul & Associates, claims in a signed affidavit that the company’s employees were paid to register only Republicans. His former employer told him to ask prospective voters, “Who would you vote for in the next election?” Only people who indicated they would vote for President Bush were to be registered, he says. When Russell refused to follow instructions and registered both Democrats and Republicans, his employer docked his pay. Russell also says that he witnessed his supervisor take out eight to ten Democratic registration forms from a pile and destroy them—a felony in some states. He added that hundreds, if not thousands, of forms were destroyed. “I personally witnessed my supervisor at VOA, together with her personal assistant, destroy completed registration forms that VOA employees had collected” he explains. [KGW 8 (Portland, OR), 10/13/2004; CBS News, 10/14/2004; Las Vegas Review-Journal, 10/14/2004; Mercury News (San Jose ), 10/14/2004] “We caught her taking Democrats out of my pile, handed them to her assistant, and he ripped them up right in front of us.” [CNN, 10/14/2004] “All of the destroyed registration forms were for registrants who indicated their party preference as ‘Democrat.’” [Mercury News (San Jose ), 10/14/2004] Russell’s account is supported by another of the firm’s former employees, Tyrone Mrasak, who tells the Las Vegas Review-Journal that workers were encouraged to register 18 Republican voters per day. He says that they were permitted to finish the day at anytime after meeting this quota and would still be paid for eight hours of work. “We didn’t get credit for forms we brought back marked Democrat,” he explains. He also recounts how he would often loiter in front of homeless shelters and give homeless people cigarettes in exchange for registering as Republicans. “As long as they have an address, they can register,” Mrasak says. “If they were looking to bum a cigarette I’d say, ‘I’ll trade you a cigarette if you sign this.’” [Las Vegas Review-Journal, 10/14/2004] These charges are adamantly denied by the Republican National Committee, which provides the San Jose Mercury News with affidavits from two other employees of the firm claiming that no voter-registration forms had been destroyed. [Mercury News (San Jose ), 10/14/2004] The firm also denies that its employees were instructed to destroy forms, but does not dispute that they were encouraged to register more Republicans than Democrats. [San Francisco Chronicle, 10/28/2004] Republican consultant Paul Senseman says that Sproul is “very professional, very mission-oriented,” adding, “He’s somebody that gets things done.” [San Francisco Chronicle, 10/28/2004]

A group of more than 650 Western foreign affairs specialists, calling themselves “Security Scholars for a Sensible Foreign Policy,” write an “Open Letter to the American People,” which says: “American actions in Iraq, including but not limited to the scandal of Abu Ghraib, have harmed the reputation of the US in most parts of the Middle East and, according to polls, made Osama bin Laden more popular in some countries than is President Bush. This increased popularity makes it easier for al-Qaeda to raise money, attract recruits, and carry out its terrorist operations than would otherwise be the case.”
[Anti-war (.com), 10/12/2004]

In Portland, Oregon, Mike Johnson, age 20, tells KGW News that he formerly worked for Voter Outreach of America—a name used by the Republican-financed political consulting firm, Sproul & Associates—as a canvasser registering people to vote. He says that his former employer instructed him to only accept Republican registration forms. His boss also told him that forms turned in by Democrats might be “destroy[ed]” since he was being paid by the Republican party. [KGW 8 (Portland, OR), 10/13/2004]

The CIA says in a court filing that it cannot confirm or deny the existence of documents being sought after by the American Civil Liberties Union (ACLU) “because to do so would tend to reveal classified information and intelligence sources and methods that are protected from disclosure.” The ACLU sued the government for access to the documents two months earlier. The documents, which a US District Court ordered the government to provide (see August 12, 2004), relate to the treatment of detainees in Guantanamo and Afghanistan. [Boston Globe, 12/27/2004]

Chad Staton of Defiance County, Ohio, is charged with filling out 124 fictitious voter registration forms, some using the names of celebrities and fictitious characters, including Michael Jackson (the pop singer), Jeffrey Dahmer (the famous serial killer), and Disney character Mary Poppins. Staton was hired by Toledo resident Georgianne Pitts to collect legitimate voter registration forms from unregistered voters. Instead, he filled the forms out himself, according to Sheriff David Westrick. Deputies also allege that Staton was paid in crack cocaine instead of in cash, after a search of his house turned up drug paraphernalia and blank voter registration forms; Westrick says Pitts admitted paying Staton in crack cocaine. Staton is charged with a felony, false registration. Pitts says she was recruited by Thaddeus Jackson, the assistant Ohio director of the NAACP National Voter Fund (NVF). Greg Moore, the executive director of the NVF, says the organization is “shocked” by the allegations and welcomes the investigation. “We believe anyone violating the law hurts the credibility of NVF and more importantly the thousands of hard-working men and women who are legally registering people to vote,” he says, adding that he hopes the allegations do not damage the reputation of other “volunteers and canvassers who have worked tirelessly to enfranchise the disenfranchised throughout the year.” Jackson says Pitts is a volunteer for the NVF, and that he knew nothing of the allegations until he was told of them by a reporter from the Toledo Blade. Westrick says his office was alerted to the problematic forms after a complaint was filed by the Defiance County Board of Elections. The handwriting on the forms was too similar, officials thought, and some of the addresses did not seem legitimate. The names were the giveaway, Westrick says. “Mary Poppins hasn’t voted here in a long time. Michael Jackson hasn’t. Those were some of the fictitious names,” he says. Within hours of Staton’s arrest, the Ohio Republican Party issues a statement claiming “the effort to steal Ohio’s election is under way, and it’s being driven exclusively by interest groups working to register Democrat voters.” The NVF has submitted over 80,000 legitimate voter registration forms. Staton’s fraudulent forms are around 0.15 percent of the total number of NVF forms submitted. The Ohio Democratic Party states that it does not condone registration fraud; a spokesperson says that of the 500,000 forms submitted for newly registered voters, “the vast, vast majority are clearly eligible voters who did the right thing.” The NVF has been accused of submitting fraudulent registration forms in the past. The Blade notes that a Republican organization, Voters Outreach of America, destroyed voter registration forms its volunteers collected from Democratic voters in Nevada and Oregon. [CNN, 10/19/2004; Toledo Blade, 10/19/2004]

Michele Tharp, of Meadville, Pennsylvania, says that as a volunteer canvasser for Sproul & Associates, a Republican-financed political consulting firm, she was instructed not to register Democrats. “We were told that if they wanted to register Democrat, there was no way we were to register them to vote,” she tells the Pittsburgh Post-Gazette. “We were only to register Republicans.” Tharp further explains that volunteers were sent door-to-door to seek registrants but were told to first ask which candidate they planned to support. “If they said Kerry, we were just supposed to say thank you and walk away.” She also complains that she was paid only $14 for 15 hours of work after being hired at a rate of $11 per hour. But Brenda Snyder, a volunteer with the Republican Victory Center in Erie, who disputes claims that workers were told not to register Democrats, denies that workers were docked for registering Democrats, saying instead that the problems were due to “discrepancies in their paychecks.” [Pittsburgh Post-Gazette, 10/20/2004]

Michael Twilla, of Meadville, Pennsylvania, tells the Pittsburgh Post-Gazette that as an employee of Sproul & Associates, a Republican-financed political consulting firm, he was instructed not to register Democrats. “If they were a Kerry voter, we were just supposed to walk away.” A copy of the script that he and other canvassers are given tells them to offer unregistered Bush supporters a registration form and to tell them that the form would be personally delivered to the local courthouse. However, in order to avoid registering Democrats, the script also recommends asking registrants two questions: “Do you consider yourself pro-choice or pro life?” and “Are you worried about the Democrats raising taxes?” If voters say they are pro-life, the form says, “Ask if they are registered to vote. If they are pro-choice, say thank you and walk away.” If anyone asks who the canvassers are working for they are to respond, “Project America Vote,” a name that is nearly identical to the liberal-leaning national non-partisan group, America Votes. Other workers were reportedly also advised to say they were working for Career Concepts, a local employment agency. But a spokeswomen for Career Concepts told the Post-Gazette that the company did not employ the canvassers. Twilla also complained that he was paid for only eight of 72 hours he worked. [Pittsburgh Post-Gazette, 10/20/2004]

Fawzi Khalid Abdullah Fahad al-Odah. [Source: Cageprisoners]US District Judge Colleen Kollar-Kotelly rules on a lawsuit filed by three Kuwaiti detainees at Guantanamo: Mohammed Ahmed al-Kandari, Khalid Abdullah Mishal al-Mutairi, and Fawzi Khalid Abdullah Fahad al-Odah. She rules that detainees should be permitted to communicate with their lawyers without the government listening in on their conversations. She says the government’s attempt to wire-tap detainee-attorney communications threatens to “erode [the] bedrock principle” of attorney-client privilege. She says the government is defending its position with “a flimsy assemblage” of arguments. “The government has supplied only the most slender legal support for its argument, which cannot withstand the weight of the authority surrounding the importance of the attorney-client privilege.” [Reuters, 10/20/2004] The three Kuwaitis, Judge Kollar states, “have been detained virtually incommunicado for nearly three years without being charged with any crime. To say that their ability to investigate the circumstances surrounding their capture and detention is ‘seriously impaired’ is an understatement.” [Associated Press, 10/21/2004] She does concede, however, that lawyers for the Guantanamo detainees are required to disclose to the government any information from their client involving future threats to national security. [Reuters, 10/20/2004]

In Ohio, Republican Party officials submit a list of 35,427 registered voters in 65 different counties whose mailing addresses, they say, are questionable to county election boards. 17,717 names on the list are of newly registered voters from Cuyahoga County, which includes Cleveland, a Democratic stronghold. [Columbus Dispatch, 10/23/2004; New York Times, 10/23/2004]

The Republican Party provides Ohio election officials with lists of the people they have recruited to work as “challengers” on election day. According to a 1953 Ohio state law—which critics says is rooted in a blatantly racist 1886 statute that emerged after the Civil War—“challengers” are permitted to challenge the qualifications of voters who they suspect are not eligible to vote. [New York Times, 10/23/2004; Cincinnati Enquirer, 11/1/2004] Before a challenger can ask a poll worker to question a voter, it must first be shown that there is “reasonable” justification for doubting a voter’s qualifications. All eligible voters must be citizens, at least 18, a resident of the county and must have lived in Ohio for the previous 30 days. The Republicans’ list includes 3,600 challengers, many of whom will be working in the heavily Democratic urban neighborhoods of Cleveland, Dayton and other cities. For example 1,436 of the Republican challengers will be stationed in Cuyahoga County, which includes Cleveland, a Democratic stronghold. The Republicans claim that using challengers is necessary because the Democrats may have fraudulently registered thousands of ineligible voters. The Democrats enlist more than 2,000 recruits as challengers who they hope will protect legitimate voters from being denied their rights by their Republican counterparts. But in some of the most critical counties the Democrats will be grossly outnumbered. For Cuyahoga County, the Democrats will only have 300 challengers. [New York Times, 10/23/2004] Election officials are concerned about the huge number of challenges that are expected at the polls. “I’m not sure how we’re going to accomplish this,” says John Williams, deputy elections director in Hamilton County. “We’ve never had anything like this before.” Some fear that the challengers intend to reduce voter turnout. “Some observers worry the parties will indiscriminately challenge voters in heavily Democratic or Republican precincts as a strategy to discourage people from voting,” The Columbus Dispatch reports. [Columbus Dispatch, 10/23/2004]

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